agency
fiduciary relationship between two persons in which one acts on behalf of, and is subject to the control of, the other
- principal-agent
- employer-employee
- employer-independent contractor
types of relationships:
principal-agent relationship
principal gives the agent expressed or actual authority to act on the former's behalf
expressed authority
arises from specific statements made by the principal to the agent
actual authority
includes expressed authority and implied authority
implied authority
customarily given to an agent in an industry, trade, or profession
principal-agent
... relationship is the most common
employer-employee relationship
agent who works for pay and is subject to the control of the principal may enter into contractual relationships on the latter's behalf
respondent superior
imposes liability on a principal for torts committed by an agent employed by him or her and subject to his or her control
employer-independent contractor
agent is hired by the principal to do a specific job but not controlled with respect to physical conduct, and details of work performance
- principal must have full knowledge of the agent's action
- existence of the principal must be clear to the third party at the time of the agent's unauthorized act
conditions for a ratification to be effective:
- duty of compensation
- duty of reimbursement and indemnification
- duty of cooperation
- duty to provide safe working conditions
- duty of loyalty
principal's duties to agent:
duty of compensation
it is implied that a principal will compensate the agent for services rendered
contingency fee
agent's compensation that consists of a percentage of the amount the agent secured for the principal in a business transaction
indemnity
principal's obligation to reimburse the agent for any losses the agent incurs while acting on the principal's behalf
duty of cooperation
principal must do nothing to interfere with the reasonable conduct of an agent as agreed upon in an express or implied contract
duty to provide safe working conditions
employers who repeatedly violate the standards set by the Occupational Safety and Health Act (OSHA) may be fined or imprisoned or both
duty of loyalty
- acting on behalf of one principal only to avoid conflicts of interest
- communicating all material information to the principal
- refraining from acting in a manner adverse to the principal's interest
- duty of obedience
- duty of accounting
- duty of performance
agent's duty to principal:
duty of obedience
following the principal's reasonable and lawful instructions
duty of accounting
when the principal requests an accounting of money or property, providing it
duty of performance
using reasonable care and skill in performing his or her work
disclosed principal
- one whose identity is known by the third party when the latter enters into an agreement negotiated by the agent
- principal is liable
partially disclosed principal
- one whose identity is not known to the third party at the time of the agreement
- though the third party does know that the agent represents a principal
- principal is liable
undisclosed principal
- one whose identity and existence are both unknown to the third party
- agent may be liable to the third party if the principal does not perform the terms of the contract
principal
if an intentional or negligent tort is committed, within the scope of the agent's employment, ... may be liable
agent
if an intentional or negligent tort is committed, outside the scope of employment, ... becomes liable
criteria used to determine liability
- was the agent or employee acting in the principal's interest
- was the agent or employee authorized to be in the particular place where he or she was at the time of commission of the tort
joint and several liabilities
makes two or more people liable for a judgment
tort
person who is partially reasonable for a... can end up being completely liable for damages
negligent hiring
employer's failure to do satisfactory background checks before hiring an employee
negligent hiring
results in the potential employee's past offensive conduct going undetected
negligent supervision
employee is left in a position that may be harmful to others after notice is given to an employer
- participates directly in the agent's crime
- has reason to know that a violation of law by employees or agents is taking place
principals are not liable for criminal acts of their agents, except when the principal:
agreement
termination of the principal-agent relationship by... if either of the parties decide to terminate the relationship, third parties who dealt with the agent should be given actual notice by the principal or termination as a result of a lapse of time
operation of law
termination of the principal-agent relationship by... if relevant third parties do not have to be given notification
common methods of termination of the principal-agent relationship:
- death of one of the parties
- insanity of one of the parties
- bankruptcy of the principal
- impossibility of performance, because of destruction or loss of subject matter or a change in the law
- an outbreak of war
terminate
adequate notice is required to... a relationship of global dimensions of agency law
the foreign corrupt practices act (FCPA)
forbids U.S. businesses from making payments to political officials abroad, beyond a certain level
employment-at-will doctrine
contract of employment for an indeterminate term is terminable at will by either the employer or the employee
employment-at-will doctrine
- traditional american rule governing employer-employee relations
- restricted by common law and state statutory exceptions
common law and state statutory exceptions to the employment-at-will doctrine
- implied contract
- violations of public policy
- implied convenient of good faith and fair dealing
violations of public policy
makes it unlawful to dismiss an employee for taking certain actions in the public interest
implied covenant of good faith and fair dealing
based on the theory that every employment contract, even an unwritten one, contains the implicit understanding that the parties will deal fairly with each other
civil rights act of 1866
all persons in the US have the same right to make and enforce contracts and have the full and equal benefit of the law
civil rights act of 1871
prohibits discrimination by state and local governments
equal pay act of 1963
statute that prohibits wage discrimination based on sex
equal work
equal, here, means substantially the same terms of all four factors in the act:
- skill
- effort
- responsibility
- working conditions
legal justifications for paying unequal wages to men and women
- bona fide seniority system
- bona fide merit system
- pay system based on quality or quantity of output
- factors other than sex
bring a private action under section 16(b) of the act and recover back pay in the amount of the differential paid to members of the opposite sex
remedy for those who violate the equal pay act of 1963
civil rights act of 1964, title vii
prohibits discrimination in hiring, firing, or other terms and conditions of employment on the basis of race, color, religion, sex, or national origin
civil rights act of 1964 and 1991
applies to employers with 15 or more employees, that year or last, for 20 consecutive weeks and are engaged in a business that affects interstate commerce
disparate treatment
employer treats one employee less favorably than another because of that employee's color, race, religion, sex, or national origin
disparate impact
employer's facially neutral policy or practice has a discriminatory effect on employees who belong to a protected class
sexual harassment
unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, which explicitly or implicitly makes submission a term or condition of employment or creates an intimidating, hostile, or offensive environment
retaliate
title viii makes it unlawful to...
- employee engaged in a protected activity under title vii
- employee was fired, demoted, or suffered some other adverse employment action
- employee's protected activity was the case of or the...
prima facie retaliation must show that the:
- bona fide occupational qualification (BFOQ)
- merit
- seniority systems
- missed motives
statutory defenses for defendant in title vii cases:
bona fide occupational qualification (BFOQ)
allows discrimination in hiring on the basis of sex, religion, or national origin when such a characteristic is necessary to the performance of the job
merit
using a professionally developed ability test, which is not designed, intended, or used to discriminate is legal
- criterion-related validity
- content validity
- construct validity
acceptable merit validation depends on:
seniority systems
preferential treatment based on length of service is not unlawful if it:
- applies equally to all
- follows industry practices
- did not begin with discrimination
- is free of any illegal discriminatory purpose
- race and color
- national origin
- religion
- sex
- pregnancy discrimination act
protected classes under title vii: