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BCOR 3000: FINAL EXAM
Employment at Will |
common law doctrine which allows either party to end the employment relationship at any time and for any reason, unless doing so violates employee's statutory or contractual rights |
Wrongful Discharge |
the term used to refer to an employer's termination of an employee's employment in violation of the law or an employment contract |
implied employment contract |
a contract that is inferred or implied (interp. by court) between employer and employee even though no written employment contract exists. (based on manual or bulletin board, e.g., manual says people will only be dismissed for good cause) |
intentional infliction of emotional distress |
an extreme and outrageous act, intentionally committed, that results in severe emotional distress to another |
defamation |
anything published or publicly spoken that causes injury to another's good name, reputation, or character |
fraud |
involves intentional deceit for personal gain based on:
1. misrepresentation of facts or knowldge knowing they are false
2. (or) intent to induce another to rely on the misreprsntation
3. Justifiable reliance by the deceived party
4. Damage suffered as a result of the reliance
5. Casual connection between the misrepresentation and the harm |
whistleblowing |
an employee's disclosure to government authorities, upper-level managers or the media that the employer is engaged in unsafe or illegal activities |
Fair Labor Standards Act (FLSA) |
federal statute enacted in 1938 which extended wage and hour requirements to cover all employers engaged in interstate commerce or in the production of goods for interstate commerce, plus certain other businesses. Addresses child labor, minimum hours/wage |
administrative employees |
salary, not hourly, duties related to general business operations or management of employee |
Executive employees |
primary duty is management measured based on value to the employer, not strictly hours spent on particular tasks |
Worker Adjustment and Retraining Notification Act (WARN) |
Federal statute which:
1. applies to employers with more than 100 workers
2. requires employers to provide 60 days notice to employees and state/local governments before implementing a mass layoff or closing a plant that employees over 50 workers |
Family and Medical Leave Act |
Federal statute enacted in 1993 to allow employees to take time off from work for family or medical reasons:
1. family leave (new baby/adoption)
2. medical leave (self, spouse, child, or parent has serious health condition)
3. coverage and applic (must provide 12 weeks of unpaid family or medical leave during any 12-month period
a. must have worked there at least one year |
Occupational Safety and Health Act (FLSA) |
Federal statute enacted in 1970 which is the primary legislation protecting employees' health and safety.
1. employers must keep workplace safe
2. can't fire or discrim because worker won't work in unsafe conditions
3. makes safety standards |
Worker Compensation Laws |
state statutes that establish an admin. procedure for compensating workers injured on the job
1. workers normally file claim with admin agency
2. employers can purchase insurance |
Requirements for receiving workers compensation laws |
1. existence of an employment relationship
2. accidental injury that occurred on the job or in the course of employment, regardless of fault
3. injured employee must promptly
a. notify employer
b. file workers comp claim
c. relinquishes right to sue employer |
Social Security Act |
federal statute which provides for old-age (retirement), survivor's and disability insurance |
Federal Insurance Contributions Act (FICA) |
federal statute which requires employers and employees to contribute (or pay in) to help pay for benefits that will partially make up for the employee's loss of income on retirement |
Medicare |
federal gov health insurance program administered by Social Security Administration for people 65+ and those disabled
1. both emple and emplyr pay in
2. no cap on wages subject to tax
3. self-employment person must pay both parts |
Employee Retirement Income Security Act (ERISA) |
federal statute which regulates employee retirement plants
1. created Pension Guaranty Corp (PBGC)
2. specifies standard for retirement plan management and investment of funds and record-keeping requirement |
Federal Unemployment Tax Act (FUTA) |
federal statute regulates employee retirement plan and created state system that provides unemployment compensation to eligible individuals
1. people must be willing and able to work |
Consolidated Omnibus Budget Reconciliation Act (COBRA) |
Fed statute which requires employers to continue health care coverage for workers after their jobs have been terminated (when they are then no longer eligible for their employers' group health insurance plans)
1. employee must pay premium
2. those fired for gross misconduct are excluded |
Health Insurance Portability and Accountability Act (HIPAA) |
fed statute which regulates employer-sponsored group health plans
1. restricts manner in which covered employees collect, use, and disclose the health information of employees and their families
2. employers must ensure that employee's health information is not disclosed to unauthorized parties |
Employee Privacy Highlights |
if employer provides electronic device for biz, employer can intercept biz communications made on it, but employee must sign this right away |
Drug Testing |
in the interest of public safety, many employers, including gov employers, require their employees to submit to drug testing
1. public employers
a. limited by 4th amendment
b. allowed for transp and construction
c. upheld if drugs threaten safety
2. private
a. 4th amendment doesnt apply
b. governed by state law |
Employment discrimination |
unequal treatment of employees or job applicants on the basis of race, color, national origin, religion, gender, age, or disability
|
Civil Rights Movement |
led to body of laws protecting employees from discrimination |
protected class |
a group of persons protected by specific laws because of the group's defining characteristics
|
Title VII of the Civil Rights Act 1964 |
fed stat. which prohibits discrim against emplye, applic, and union mems for biz's and unions with 15+ peeps |
Equal Employment Opportunity Commission (EEOC) |
monitors compliance with Title VII
1. victims of alleged discrim must file with EEOC
2. if EEOC doesn't take case employee must handle it alone
3. functions under "priority cases"
a. retaliatory discharge
b. EEOC preset priorities |
Disparate-Treatment Discrimination |
form of employment discrimination that results when employer INTENTIONALLY discriminates against employees who are in protected classes
must prove:
1. member of protected class
2. applied was qualified for the job
3. rejected by employer
4. employer continued to seek applicants for the position or filled the position with a person not in class |
prima facie Case |
"at first sight", it is presumed to be true unless contradicted by evidence.
i.e. initial burden of proof met
burden shifts to employer/defendant, who must articulate a legal reason for not hiring the plaintiff |
Disparate-Impact Discrimination |
form of employment discrimination that results from certain employer practices or procedures that, although not discriminatory to their face, has a discriminatory impact
1. protected group of people adversely affected
2. plaintiff must show statistically that the employer's practices, procedures, or tests are discriminatory in effect
once plaintiff has made prima facie case, burden of proof is switched to employe |
pool of applicants |
one way to prove disparate-impact. a plaintiff can prove a disparate impact by comparing the employer's workforce to the pool of qualified individuals available in the local labor market. Must show:
1. As a result of educational or other job requirements or hiring procedures,
2. The percentage of nonwhites, women, or members of other protected classes in the employer's workforce
3. Does not reflect the percentage of that group in the pool of qualified applicants. |
Rate of hiring |
Plaintiff can prove a disparate impact by comparing selection rates of whites and nonwhites (or members of another protected class) |
Discrimination based on race, color, national origin |
To avoid liability, employer must show that its standards have a substantial, demonstrable relationship to realistic qualifications |
Discrimination based on religion |
Government employers, private employers, and unions cannot treat their employees more or less favorable based on their religious beliefs or practices and cannot require them to participate in any religious activity (or forbid them from participating in a religious activity) |
Reasonable accommodation |
employers must work with its employees to allow them to practice their religions as long as doing so does not cause undue hardship to the employer's business |
discrimination based on gender |
Employers cannot:
1. classify jobs as male or female
2. have separate male/female seniority lists
3. refuse to promote based on gender |
Pregnancy Discrimination Act of 1978 |
Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in ability to work (i.e., with respect to employment-related purposes, including the receipt of benefits under employee benefit programs |
Constructive Discharge |
a termination of employment brought about by making employee's working conditions so intolerable that employee reasonably feels compelled to quit. plaintiff must prove intolerable working conditions which employer knew or had reason to know about and prove causation |
Sexual Harassment |
1. Demanding of sexual favors in return for job promotion or other benefits or
2. Language or conduct that is so sexually offensive that it creates a hostile working environment |
tangible employment action |
significant change in employment status or benefits (e.g., fired or demoted) from sexual harassment |
Compensatory Title VII violation remedies |
only available for intentional discrimination |
punitive Title VII violation remedies |
only if employer acted with malice or reckless indifference to an individual's rights |
Age Discrimination in Employment Act (ADEA) |
fed stat. which prohibits employment discrimination on the basis of age against individuals 40 years of age or older. must show:
1. He/she was a member of the protected age group
2. He/she was qualified for position from which he/she was discharged
3. He/she was discharged solely because of age discrimination |
Americans with Disability Act (ADA) |
federal stat. which prohibits disability-based discrimination in workplace. requires emplyrs provide reasonable accommodation. must prove:
1. has disability
2. otherwise qualified for the employment in question
3. was excluded from the employment solely because of the disability |
business necessity |
the discriminating employment practice is related to job performance |
Bona Fide Occupational Qualification |
identifiable characteristics reasonably necessary to the normal operation of a particular business (race can never be a BFOQ) |
seniority systems |
system in which workers with more years of service are promoted first or laid off last |
affirmative action |
policies (in this context, hiring or promotion policies) which give special consideration to members of protected classes in an effort to overcome present effects of past discrimination |
three phases of criminal process |
1. Arrest
2. indictment or information
3. trial |
probable cause |
substantial likelihood (not just possibility) that the person has committed or is about to commit a crime. |
grand jury |
group of citizens who decide, after hearing the state's evidence, whether a probable case exists for believing a crime has been committed and that a trial should be held |
information |
deals with lesser crimes, formal accusation or complaint (without an indictment) issued in certain types of actions (usually criminal actions involving lesser crimes) by a government prosecutor when he/she determines there is sufficient evidence to justify a trial |
cyber crime |
A crime that occurs in online environment rather than in the physical world |
cyber theft |
theft of data stored in a networked computer |
identity theft |
illegal use of someone else's personal information to access the victim's financial resources |
phishing |
email fraud scam in which the messages purport to be from legitimate businesses to induce individuals into revealing their personal data/info |
hacking |
use of one computer to access another |
malware |
malicious software program, e.g., viruses |
jurisdiction |
Normally based on physical geography, and each state and nation has jurisdiction over crimes committed within its boundaries |
Intellectual Property |
property resulting from intellectual and creative purposes
|
Trademark |
a distinctive word, symbol, or design that identifies the manufacturer as the source of particular goods and distinguishes its products from those made or sold by other companies |
Lanham Act of 1946 |
federal statute enacted in part to protect companies from losing business to rival companies that use confusingly similar trademarks |
Federal trademark dilution Act |
amendment to Lanham Act of 1946 which allows trademark users to bring a lawsuit in federal court for trademark dilution |
Dilution |
weakening of a famous trademark's ability to identify and distinguish goods or services, regardless of competition in the marketplace or the likelihood of confusion |
Infringement |
when someone else uses the registered trademark in its entirety or copies it to a substantial degree, intentionally or unintentionally. Must show:
1. use of mark created a likelihood of confusion about the origin of the defendant's goods or services |
injunction |
court order that restrains a person from committing an act which infringes up the legal rights of another person |
Fanciful trademarks |
involve invented words (Xerox, Kleenex, Google) |
Arbitrary trademarks |
involve common words not ordinarily associated with the product (Apple) |
Suggestive trademarks |
bring to mind something about a product without describing the product directly (Dairy queen) |
Secondary meaing |
descriptive terms, geographic terms, and personal names are not distinctive until customers begin to associate those terms/names with a specific item made by a particular company |
generic terms |
terms that refer to an entire class of products receive no protection, even if they acquire secondary meaning |
service mark |
trademark used to distinguish the services (rather than the products) of one person or company from those of another (McDonald's trademark is service mark) |
Certification Mark |
trademark used by person(s) other than owner, to certify quality, materials, mode of manufacture, or other characteristic of special goods or services (Energy Star) |
Trade Dress |
image and overall appearance (look and feel) of a product that is protected by a trademark law (Décor, menu, and style of a restaurant) |
Counterfeit Goods |
goods that copy or otherwise imitate trademark goods but are not genuine |
Trade Names |
name that a business uses to identify itself and its brand |
License agreement |
agreement which permits the use of a trademark, copyright, patent, trade secret, or other forms of intellectual property for certain limited purposes |
Licensor |
party that owns the intellectual property rights and issues the license |
licensee |
party that obtains the license from the licensor |
Domain name |
part of an internet address |
cybersquatting |
occurs when a person registers a domain name that is the same as, or confusingly similar to, the trademark of another and then offers to sell the domain name back to the trademark owner |
Anti-cybersquatting Consumer Protection Act |
federal statute which amended the Lanham Act and made it illegal to register traffic in, or use of a domain name (1) if the name is identical or confusingly similar to the trademark of another and (2) if the person registering has bad faith intent |
Patents |
property right granted by federal gov't that gives an inventor exclusive right to make, use, sell, or offer to sell an invention in the U.S. for a limited time |
America Invents act |
federal statute enacted in 2011 which established that the first person to file a patent application received protection (as opposed to the first person to invent a product or process; also provides 9-month challenge period) |
What is patentable? |
An invention that is novel, useful, and not obvious in light of current technology |
What is not patentable? |
Laws of nature, natural phenomena, abstract ideas |
Patent Infringement |
a tort whereby a firm makes, uses, or sells another's patented design, product, or process without the patent owner's permission |
copyright |
intangible property right granted by federal statute (The Copyright Act of 1976) to author or originator of certain literary or artistic productions |
copyright infringement |
whether the form or expression of an idea is copied. infringement occurs only if a substantial part of the original is reproduced
|
remedies |
guilty may be liable for damages or criminal penalties (for willful violations) |
Fair Use Doctrine |
provides an exception to liability for copyright infringement |
Trade Secret |
formula, device, idea, process, or other information used in a business that gives the owner a competitive advantage in the marketplace |
Paris Convention of 1883 |
More than 170 countries agreed to allow parties in one country to file for patent and trademark in any other signatory countr |
Berne Convention of 1886 |
Copyright protection afforded in all signatory countries for copyrighted materials originating in one country |
TRIPS Agreement of 1994 |
Standards for international protection of IP rights, including patents, trademarks, and copyrights for movies, computer programs, books, and music |
Madrid Protocol |
Simpler process and lower costs for trademark registration |
property |
legally protected rights and interests in anything with an ascertainable value that is subject to ownership |
real property |
land and everything attached to it |
Personal property (chattel) |
property that is movable |
tangible property |
property of physical substance (tv, car) |
intangible property |
property w/o phys substance (stocks, patents) |
Fee Simple absolute |
absolute form of property ownership entitling property owner to use, possess, or dispose of property as she/he chooses during her/his lifetime; upon death, interest in property transfers to her heirs |
Tenancy in common |
co-ownership in which each party owns an undivided interest in the property. upon death of one tenant, that tenant's interest in property passes to their heirs |
joint tenancy |
co-ownership in which each party owns an undivided portion of the property. upon death, that tenant's interest passes to surviving joint tenant |
Community property |
form of concurrent ownership of property in which each spouse owns an undivided 1/2 interst in property acquired during the marriage |
confusion |
co-mingling of goods to such an extent that one person's personal property cannot be distinguished from another's |
gift |
voluntary transfer of property made without consideration |
Inter vivos gift |
gift made during one's lifetime |
Causa mortis gift |
gift made in contemplation of imminent domain |
mislaid property |
property that owner has voluntarily parted with and then has inadvertently forgotten (forgot phone at theatre) |
lost property |
property that is involuntarily left behind by its owner |
conversion |
when finder of lost property knows true owner and fails to return property to him (wrongful taking of another's property) |
astray statuses |
state statutes which facilitate return of property to true owner and reward finder if property remains unclaimed |
abandoned property |
property that has been discarded by the true owner, who has no intention of reclaiming title to it (suzies scarf) |
bailment |
situation in which the personal property of one person (bailor) is entrusted to another (bailee), who is obligated to return the bailed property to the bailor or dispose of it as directed. usually formed for a particular purpose (loan, lease, store, repair) |
Elements of a bailment |
1. personal property (can't be real property)
2. delivery of possession (without title) bailee must be given exclusive possession and control over property and knowingly accept property
3. Agreement that property will be returned to bailor or otherwise disposed of according to the owner's directions |
constructive delivery |
substitute or symbolic delivery related to the property (e.g., keys instead of car) |
Three types of ordinary bailment |
1. For the sole benefit of the bailor (bailee is caring for the bailor's property as a favor)
2. for the sole benefit of the bailee (one person lends an item to another person solely for the bailee's convenience and benefit
3. For mutual benefit of the bailor and bailee (some form of compensation involved or servicing of property) |
Possession (right of bailee) |
right to control and possess the property temporarily |
Use (right of bailee) |
depends on the agreement and how necessary it is (storing car in garage vs. dropping off friend at airport) |
compensation (right of bailee) |
depends on the agreement and has a right to be reimbursed for costs incurred and services rendered |
limited liability (right of bailee) |
can limit its liability as long as bailor is aware of such limitations and they are not against public policy |
compensation (duty of bailor ) |
to compensate the bailee either as agreed or as reimbursement for costs incurred by the bailee in keeping property |
reveal defects (duty of bailor) |
must notify the bailee of defects |
duty of care (duty of bailee) |
exercise reasonable care in preserving bailed property |
duty to return bailed property (duty of bailee) |
failure to give up possession at proper time amounts to a breach of contract and could involve tort liability |
common carriers |
publicly licensed companies which transport goods or passengers on regular routes at set rates (abs. liable for all loss or damaged goods) |
Warehouse companies |
in the business of storing property for compensation, they are expected to exercise a higher standard of care to protect and preserve goods (can limit liability) |
Hotel operations |
strictly liable for the loss of any cash or property that guests bring into their hotel rooms |
Nuisance |
use of a property in a way that interferes with others' right to use or enjoy their own property |
life estate |
ownership interest in land that lasts only for the duration of the life of some specified individual |
conveyance |
the transfer of title of real property from one person to another by deed or other document |
nonpossessory interest |
an interest in land that involves the right to use the land but not the right to possess it |
easement |
a nonpossessory right established by express or implied agreement, to make limited use of another's property without removing anything from the property |
easement by implication |
when circumstances surrounding the division of a parcel of property imply its existence |
easement by necessity |
does not require a division of property for its existence |
license |
the revocable right to enter onto another person's land without obtaining any permanent interest in the land |
profit |
a nonpossessory right to go onto land owned by another and take away some part of the land itself or some part of the land itself or some product of the land |
types of transfer of ownership |
1. sale
2. will or inheritance
3. adverse possession
4. eminent domain |
mortgage loan |
loan that is used to purchase property and is secured by that property |
implied warranty of habitability |
guarantee by the seller of a new ouse that the house is fit for human habitation |
Deed |
written instrument which conveys real property. to be valid it must:
1. have name of buyer and seller
2. words indicating an intent to convey the property
3. legally sufficient description of the land
4. signature of grantor
5. Delivery of the deed |
Warranty deed |
provides the greatest protection to a buyer (grantee) against defects of title. requires special language |
special warranty deed |
only warrants that grantor (seller) held good title during his/her ownership of the property |
quitclaim deed |
offers least amount of protection to buyer |
recording statutes |
statutes that allow deeds, mortgages, and other real property transactions to be recorded so as to provide notice to future purchasers or creditors of an existing claim on the property. |
adverse possession |
means of obtaining title to land without delivery of a deed based on possessing the property of another for a certain statutory period of time |