agency
the principal-agent relationship where the agent is hired to act on behalf of the principal
principal
a party who employs another person to act on their behalf
agent
a party who agrees to act on behalf of another
principal/agent relationship
employee (as agent) IS authorized to enter into contracts on behalf of the principal
employee/employer relationship
employee (NOT as agent) is hired to perform a task but is NOT authorized to enter into a contract on behalf of the principal
principal/independent contractor
independent contractor (NOT as agent and NOT as an employee) is hired to perform a task for the principal but CANNOT enter into contracts
principal/agent vs. employer/employee relationship difference
agents can enter into contracts while employees cannot
fiduciary duty
duty of loyalty" owed to principal by agent; a duty to act for someone else's benefit while subordinating one's personal interest to that of the other person; highest standard to duty in law today
loyalty, notification, performance, obedience, accounting
five duties that make up fiduciary duty (responsibilities of agent to principal)
self-dealings, usurping opportunities, competing with the principal, misuse of confidential information, dual agency
five breaches of fiduciary duty (duty of loyalty)
dual agency
occurs when an agent acts for tow or more different principals in the same transaction; agent can't meet duty of loyalty to 2 parties with conflicting interests
misuse of confidential information
occurs when an agent discloses or misuses the use of confidential or personal information pertaining to the principal during the course of the agency and after the relationship ceases to exist; general knowledge or information is not under this regulation
competing with the principal
occurs when an agent competes with the principal during the course of the agency, unless the principal agrees to let them compete for the same thing the principal is trying to obtain
usurping opportunities
occurs when an agent takes an opportunity that was offered or meant for the principal for themselves without presenting it to the principal first
self-dealings
occurs when an agent takes advantage of their position and puts their interests ahead of those of the client; agents are prohibited from undisclosed self-dealings with the principal; if an agent wants to sell their house to a principal, they must disclose
duty to perform, duty to notify, duty to account
3 duties outside of fiduciary duty; duties of agent to principal
duty to perform
performing all of the lawful duties expressed in a contract AND meeting the standards of reasonable care, skill and diligence
duty to notify
agent must notify the principal of any and all important information that is brought to their attention during the course of the agency because the law implies "imputed knowledge" on the part of the principal
duty to account
agent is required to maintain an accurate (seperate) accounting of all transactions undertaken on each principal's behalf; principal can demand accounting at any time
duty to compensate, duty to reimburse, duty to indemnify (compensate for harm/loss), duty to cooperate
4 responsibilities of principal to agent
duty to compensate
a duty to pay the agreed upon amount in the contract at the time stated in the contract to the agent; sometimes the fee is a contingency fee (only paid upon success)
duty to reimburse
duty that requires the principal to pay the agent for the legitimate expenses incurred in performing their duties as an agent; expenses must be authorized by the principal, be within the scope of agency, be necessary to discharge the agent's duties in car
duty to indemnify (compensate for loss or harm)
duty that requires the principal to compensate for any loss or harm suffered due to the principal's conduct
duty to cooperate
a duty that requires the principal to cooperate with and assist the agent in the performance of the agent's duties to satisfy the agency
fully disclosed, partially disclosed, undisclosed
3 classifications of agency
fully disclosed agency
an agency in which a contracting third-party knows (1) the agent is acting on behalf of a principal and (2) the identity of the principal
no, the third party knows who the agent is acting on behalf of and who is actually liable
is the agent liable for the contract in a fully disclosed agency?
if the agent signs a contract without mentioning that he is signing on behalf of a principal, if the agent GUARANTEES the performance of the contract
what are the exceptions for when an agent is liable in a fully disclosed agency?
partially disclosed agency
an agency in which a contracting third-party knows (1) the agent is acting on behalf of a principal but (2) does NOT know the identity of the principal
both the agent and the principal are liable
is the agent liable in a partially disclosed agency?
the principal doesn't want their identity disclosed, agent forgot to disclose principal's name
why might a principal not have their identity disclosed to a third-party contractor?
undisclosed agency
an agency in which a contracting third-party does not know that the agency exists
both the agent and principal are liable
is the agent liable in an undisclosed agency?
scope of authority
generally, principals are not liable of the contracts their agents enter into on their behalf if the agent exceeded their _____________
implied warrantee of authority
liability only exists if the principal ratifies the contract (accepts the agent's undisclosed contract as their own)
vicarious liability
liability without fault; principal is only liable because of their employment contract with the negligent agent, not because they were personally at fault
principal is liable
are principals reliable if an intentional tort is committed within the scope of the business?
principal is NOT liable
are principals reliable in an intentional tort is committer outside the scope of the business?
motivation test, work-related test
2 tests used to determine whether the intentional tort was committed within the agent's scope of employment (principal is liable)
motivation test
if the agent's motivation in committing the intentional tort is to promote the principal's business; the principal is liable
work-related test
if the agent commits the intentional tort WITHIN work-related time or space; the principal is liable
doctrine of respondeat superior
rule stating that an employer is liable for the tortious conduct of its employees/agents when they are acting within the employer's scope of authority
frolic and detour, coming and going, dual purpose
three exceptions to the doctrine of respondeat superior
Frolic and detour
situation in which an agent does something during the course of their employment to further his/her own interests rather than the principal's interest; principals are generally relieved of liability if the agent's act is SUBSTANTIAL (hitting a pedestrian
coming and going
situation where a principal is generally NOT liable for injuries caused by agents and employee while they are on their way to or from work
dual purpose
situation that occurs when a principal requests something of the agent while they are on personal business; most jurisdictions hold BOTH the principal and the agent liable if the agent injures someone while on a mission
contract employee, union employee, at-will employee
types of employees
contract employee
employment is based on individual contracts
union employee
employment contracts are negotiated for each position collectively
at-will employee
the most common type of employee: full-time, part-time, seasonal, salaried, etc.; can be fired or hired for any reason or no reason at all; relationship can be terminated by any party at will
right to work state
state where you cannot be forced to work in a unionized job
forced unionism state
state where in order to work at a company that is unionized, you have to join the union or else you cannot be hired
Title VII of the Civil Rights Act of 1964
prohibits employment discrimination based on a person's membership in a protected classification; its purpose is to provide equal opportunity in employment
race, color, sex, national origin, religion
the 5 protected classifications
sex-plus discrimination
when an employer treats a subset of a class differently; doesn't discriminate against all females, just married females
disparate treatment or impact, harassment creating a hostile work environment, failure to reasonably accommodate
three ways to bring a religious discrimination complaint
disparate treatment or impact (wasn't hired because of their sex), continuous inappropriate or sexual harassment that creates a hostile work environment, quid pro quo (has to do inappropriate acts in order to keep a job)
three ways to bring a sex discrimination complaint
vicariously liable
if harassment claims are not handled by an employer or higher up properly, they can be deemed _____________
equal employment opportunity commission (EEOC)
a place where employees can take their complaints about discrimination in the work place where they feel their rights were violated (national level)
fair employment practices agency (FEPA)
a state level EEOC
complaint process for discrimination cases
1. file complaint through EEOC or FEPA, 2.investigation (prima facie), 3. determination of whether there was or wasn't a violation
EEOC or FEPA sues the employer on behalf of complainant OR issues a right to sue letter
what happens if EEOC or FEPA determines there was a discrimination violation?
EEOC or FEPA issues a right to sue letter
what happens if EEOC or FEPA determines there was no discrimination violation?
scope of coverage
Title VII prohibits discrimination in: hiring and firing, decisions of promotion and demotion, compensation and benefits, availability of job training, work rules, any other "term, condition, or privilege" of employment
within 180 days (6 months) of the allegation violation
statute of limitations for discrimination allegations
employees in labor unions with 15+ employees, all employment agencies, federal employees
employees subject to title VII
native american tribes, employees in labor unions with less than 15 people, tax-exempt private clubs (membership only)
employees NOT subject to title VII
disparate treatment
type of discrimination that affects one individual in a protected class; occurs when an employer treats a specific individual less favorably because of their membership in a protected classification
disparate impact
type of discrimination that occurs when an employer discriminates against an entire protected class
in order to prove prima facie of a disparate impact, the complainant must prove a casual link between the challenged practice and statistical data, 80% rule
to prove prima facie of disparate impact
burden of proof
since the 14th amendment states that a person is innocent until proven guilty, the __________ is the complainant to PROVE that a person is still guilty
disparate treatment
employment law shifts the burden of proof once the complainant establishes a prima facie case
disparate impact
employment law shifts the burden of proof once the complainant establishes a casual link
harassment defense, merit, seniority as a defense, bona fide occupational qualification (BFOQ)
4 employer defenses to discrimination
harassment defense
when an anti-discrimination policy is in place and the person being harassed failed to utilize it/follow procedure
merit as a discrimination defense
proof a person didn't meet the qualifications for a position OR proof that the person who got the job was more qualified
seniority as a defense
the person who got the job was qualified AND had seniority in the company
bona fide occupational qualification
the qualification must be job related AND a job necessity; I.e. only women can be hired as a women's locker room attendant
affirmative action
issue involving discrimination that involves making up for bad deeds that occurred in the past; courts have allowed this if the employers plan is "narrowly tailored" to achieve a "compelling interest" but cannot make quotas that then have to be met
Equal Pay Act of 1963
act that prohibits disparity in pay for jobs that require equal skill, effort, responsibilities, and similar working conditions for men and women; applies to all employees but NOT to the federal government
lilly ledbetter fair pay act of 2009
act that says that for every discrimination claim brought about, the clock resets back to the 180 day statute of limitations
Age discrimination in employment act (ADEA)
prohibits discrimination against employees who are 40 and older
americans with disabilities at of 1990 (ADA)
prohibits discrimination against QUALIFIED individuals with disabilities; the person has a disability that is documented and reported and the person can perform the essential functions of the job with or without accomodations