MGMT 311 Exam 4

Agency

the fiduciary relations that results from the manifestation of consent by one person to another that the other shall act in his/her behalf and subject to his/her control, and consent by the other so to act

Fiduciary

at the heart of agency law

• As a noun- a person having a duty created by his or her undertaking to act primarily for another’s benefit in matters connected with the undertaking

• As an adjective, a relationship founded on trust and confidence

Types of Agency Relationships in Business

• Employer-Employee Relationship

• Employer-Independent Contractor Relationship

Employer-Employee Relationship

typically all employees who deal with 3rd parties arm deemed to be agents of the business/owners

• salesperson in department store- making sales binding on owner

• overlap between employment law (statutory law) and agency law (based upon common law)

• Employment laws do not apply independent contractors

Employer-Independent Contractor Relationships

Independent contractor- is a person who contracts with another to do something for them but who is not controlled by the other party. The IC may or may not be an agent

• homeowner hires a real estate agent to sell their home; hire a plumber to fix a leaky toilet

Contractor and subcontractors are IC

The criteria considered when determining whether a person is an employee or contractor is

• How much control does the employer exercise over the detail of the work?

  • More control and detail=employee

• Is the worker engaged in an occupation/business distinct from that of the employer?

  • If so, indicates IC

• Is the work usually done under the employer’s direction or by a specialist without supervisor?

  • If done under employer discretion-employee

• Does the employer supply the tools at the place of work?

  • If so, this indicates employee status

• For how long is the person employed?

  • Long period of time-employee

• What is the method of payment- time period or at completion of job?

  • payment by time- employee

• What degree of skill is required?

  • great deal of skill- IC

What is better for workers vs employers?

Workers- better to be categorized as an employee than IC

Employers-better to have workers categorized as IC

• Rational- unemployment benefits/taxes, payroll taxes, and works’ comp

IRS Criteria

the most important factor is the degree of control the business exercise on the worker

• The _____ closely scrutinize firm’s classifications because of tax liabilities involved with employees

  • if misclassified a firm may be on the hook for paying all applicable taxes

Employee Status and “Work for Hire”

ordinarily a person who creates the copyright work is the owner of the copyright- unless it is a work for hire

• under copyright law- any copyright work created by an employee within the scope of his/her employment at the request of the employer is a work for hire

• when an employer hires an IC- the IC owns the copyright, but parties may agree to make it a work for hire

Formation of Agency Relationship

consensual and voluntary agreement between the parties

• normally does not need to be in writing and consideration is not required

• individual does need contractual capacity to be principal

  • Rationale- if you can’t legally enter a K, should not do so indirectly through an agent

• if illegal then is unenforceable

An agency relationship can arise in Four ways

1. By agreement of parties

2. by ratification

3. by estoppel

4. by operation of law

Agency by agreement

most agency relationships are based upon expressed or implied agreements that the agent will act for the principal and the principal agrees to have the agent so act

• can be formed through expressed written or oral Ks

Agency by Ratification

when a person who is not an agent (or acting outside the scope of his/her authority) makes a K on behalf of another (principal) and the principal affirms (by actions/words) the K the agency relationship has been created

• requires intend and intent can be expressed by words/actions

Agency by estoppel

when a principal allows/causes a 3rd party to believe that an agent is acting on behalf of the principal and causes the 3rd party to act on the belief in his/her detriment

• 3rd party must prove that he/she reasonably believed an agency relationship existed (using reasonable person standard)

• that the principal’s conduct/statements was the cause of the belief (not the agents)

Agency by operation of law

courts may find agency relationships absent formal agreements

• Family relationships- actions of one spouse may impose liability upon the other, parent and child as well

• Emergency situations

Five Duties owed to the Principal

1. Performance

2. Notification

3. Loyalty

4. Obedience

5. Accounting

Performance

an implied condition is that the agent will use reasonable diligence and skill performing the work. Failing to do may result in breach of contract

• reasonable person standard- ordinary care for level of skill advertised

• agents acting gratuitously (without payment) cannot be liable for breach of K, no K because no consideration- may be liable for tort

Notification

an agent is required to notify the principal of all matters that come to his/her attention concerning the subject matter of the relationship AKA duty to inform

Loyalty

most fundamental duty- basically agent must act solely for the benefit of his/her principal and not in the interest of themselves/3rd party

• it could be a breach of loyalty to disclose confidential information during or after the relationship

• agent’s loyalty must be undivided, can not result in secret profits for agent/3rd party

  • unless all parties agree to the arrangement

Obedience

the agent has a duty to follow all lawful and clearly state instructions

• unless an emergency situation arises, no clear- must act in good faith and reasonable

Accounting

the agent must keep track and make available an account of all property and funds received and paid out, no comingling of funds (big issue for attorneys)

Four Duties owed to the Agent

1. Compensation

2. Reimbursement & Indemnification

3. Cooperation

4. Safe working conditions

Compensation

agent working for principal expects payment

• principal must pay the agreed upon value for the services and timely

Reimbursement & Indemnification

principal must reimburse the agent for any necessary expenses incurred during the arrangement. The principal must also indemnify an agent for liabilities incurred because of authorized acts of the agent

• principal not responsible for expenses nor must indemnify the agent for misconduct/negligence or unauthorized acts

Cooperation

principal has the duty to work with the agent and to assist the agent in performing his/her duties

• exclusive agency- cannot compete against the agent

Safe working conditions

common law requires principal to provide safe working premises, equipment, and conditions. Tort, WC, OSHA

Rights & Remedies

every duty of the principal, the agent has a corresponding right and vice versa. One breaches the other is entitle to a remedy. Remedies arise out K and or tort law

Agent Authority

may be actual (expressed or implied) or apparent

• if the agent acts outside of the scope of their authority, they may still bind the principal

Expressed Authority

declared in clear, direct and definite terms- can be done orally

• Equal Dignity Rule

• Power of Attorney

Equal Dignity Rule

some jurisdiction require that if the K must be in writing, so must the agent’s authority to enter the K, other wise the K voidable: exceptions to equal dignity rule are:

• Executive officers of a corporation can conduct normal & business transactions w/out written authority from the corp.

• When the agent acts in presence of the principal, the rule does not apply

• When the agent’s signature is merely a formality

Power of Attorney

giving an agent power of attorney confers express authority

• POA- is a written document usually notarized; it can be special or general; terminates on death or incapacity

Implied Authority

this allows agent to what is reasonable & necessary to carryout the expressed authority and accomplish the objectives of the relationship.

• Can be implied by custom or inferred from the position the agent occupies; cannot contradict expressed authority

Apparent Authority

is when the principal by words/actions cause a 3rd party to believe that the agent has authority to act, even though they did not (neither expressed or implied).

• this usually occurs through a principal’s pattern of conduct over time

• Ct will apply agency estoppel when a principal has given a 3rd party reason to believe that an agent has authority to act. If the 3rd party reasonable relies on the principal representations to their detriment, the principal will be estopped from arguing the agent exceed their authority

Emergency powers

when unforeseen emergency demands action by an agent to protect or preserve the property and rights of the principal, but the agent is unable to communicate with the principal, the agent has emergency power.

• If the agent acts outside the scope of their authority, they may still bind the principal

Ratification

occurs when the principal affirms or accepts responsibility for an agent’s unauthorized act. The principal is now bound and treated as if the agent had expressed authority to act

• Six Requirements

Six Requirements of Ratification Are

1. The agent must have acted on behalf of the principal who subsequently ratifies the action

2. The principal must know all the material facts involved in the transaction

3. the principal must affirm the agent’s act in its entirety

4. The principal must have legal capacity to authorize the transaction at the time the agent engages in the act and at time of ratification

5. Principal’s affirmation must transpire before the 3rd party withdraws from the transaction

6. The principal must observe the same formalities when ratifying the act as required to undertake the act.

Liability in agency relationship

depends on how the principal is classified and whether the action of the agent was authorized or unauthorized

Classifications of principal are

• disclosed principal- identity is known to the 3rd party at the time K was formed

• Partially disclosed- identity if not known, but the 3rd party knows the agent may be acting for a principal at the time the K was formed

• Undisclosed- totally unknown and no knowledge that the agent is acting in an agency capacity

Authorized acts

if the agents acts w/in the scope of his/her authority, the principal is obligated to perform the K regardless of principal’s status

• Agent’s liability under the K will depend on whether the principal’s status was undisclosed or partially disclosed.

Disclosed or partially disclosed principal

is liable to a 3rd party for a K made by the agent

• If the principal is disclosed the agent has no K liability for performance

• If partially disclosed most jurisdictions treat the agent as a party to the K- thus liable under the K

Undisclosed principal for authorized acts

principal is liable for the K and must indemnify the agent.

• Once the undisclosed principal identity is revealed, the 3rd party can elect to hold either the principal or agent liable under the K

• The undisclosed principal can require the 3rd party to fulfill the K; unless one of the following are true:

  • The undisclosed principal was expressly excluded as a party in the written K

  • The K is a negotiable instrument signed by the agent with no indication of signing in a representative capacity

  • Performance of the agent is personal to the K; thus, allowing the 3rd party to refuse the principal’s performance

unauthorized acts

if the agent has no authority but contracts with a 3rd party, the principal cannot be held liable under the K. The agent is solely liable

• If the principal is disclosed or partially disclosed, and the agent contracts with a 3rd party without authorization the agent’s liability is based upon implied warranty of authority

• Implied warranty of authority- holds that the agent has the authority to enter the K on behalf of the principal

  • If 3rd party knows the agent does not have the authority; no liability by the agent

Actions by e-agents

today the same agency principals apply to human agents and e-agents. E-agents is a semiautonomous software that can execute specific tasks

• E-agents can enter into binding agreements on behalf of their principals

  • examples- internet orders

Liability for a principal for an agent’s torts/crimes depends of several factors

• Principal’s Tortious Conduct

• Liability for agent’s misrepresentation

• Liability for Agent’s Negligence

• Scope of Employment

• The difference between a “detour” and “Frolic”

• Liability for agent’s intentional torts

• liability for independent conrtactor’s torts

• Liability for agent’s crimes

Principal’s Tortious Conduct

a principal who acts through an agent may be liable for harm resulting from the principal’s own negligence/recklessness

• This could arise by improper instructions; authorizes the use of improper materials or tools; or establishes improper rules that results in the agent’s committing a tort

• A principal who authorizes an agent to commit a tort may be liable to persons or property; b/c the act is principal committing the act

Liability for agent’s misrepresentation

a principal is exposed to tort liability whenever a 3rd party sustains an injury due to an agent’s misrepresentation

• The principal’s liability depends on whether the agent was actually or apparently authorized to make representations and whether the representations were made within the scope of agency.

Liability for agent’s Negligence

agent is liable for his/her own actions. A principal may also be liable for harm an agent causes to a 3rd party under the doctrine of respondeat superior ( let the master respond).

• Respondeat Superior- hold that a principal/employer is liable for any harm caused to a 3rd party any an agent/employee in the course or scope employment

  • RS- is like the theory of strict liability in that liability is imposed regardless of fault

• The doctrine imposes vicarious liability (indirect liability) b/c the principal/employer is being held liable for torts committed by the agent/employee

Scope of Employment

is the key to determining whether a principal may be liable under the doctrine of Respondeat Superior. Cts will look at the following factors to determine whether or nor the agent's acts were w/in the course and scope:

• Was the employee’s act authorized by the employer

• The time, place, & purpose of the act

• Was the act one that is commonly performed by the employees on behalf of the employer

• To what extent was the employer’s interest advanced by the acts’

• To what extent was the private interest of the employee were involved

• Did the employer furnish the means or instrument by which an injury inflicted

• Did the employer have reason to know that the employee would perform the act in question and had the employee done it before

• Did the act involve the commission of a serious crime.

The Difference between a “detour” and “Frolic”

if an agent merely takes a detour from his principal’s business the principal is liable as opposed to a “frolic of his own” and not in any way on his principal’s business the principal will not be liable

• An employee going to and from work or from meals is outside the scope of work; however, is travel is required and while traveling that is considered w/in the scope of work.

Liability for Agent’s intentional torts

most intentional torts have no relation to their employment, and their employers will not be held liable

• Must look at the doctrine of respondeat superior; the employer may be liable for intentional torts

  • Bouncers at Bars; Security guards; Police Officers- employees who has propensity to act

Liability for Independent Contractor’s torts

an employer is not liable for the physical harm caused to a 3rd person by the negligent act of IC in the performance of the K

• Rationale- the employer lacks requisite control of the contractor’s performance

  • However- if the contract involves “hazardous activities” strict liability will be imposed

Liability for Agent’s crimes

principal is normally not liable for an agent’s crimes even if committed within the scope of employment

• Exception- if the principal or employer participated in the crime by conspiracy or other action

Termination of an agency

agency law and K law are similar in that both may be terminated by an act or by operation of law

• once terminated the agent no longer has the right to bind the principal

• for apparent authority to terminate the 3rd party needs to be notified of the termination

Termination by act of the parties may include

• Lapse of time; achievement of purpose; occurrence of specific event; mutual agreement; option of one party

• the act of termination is called revocation if done by the principal and renunciation if done by the agent.

Wrongful termination

while both parties have the power to terminate an agency relationship, one or both parties may not have the right the right to do so. Wrongful termination may subject the canceling party to a lawsuit for breach of K

• Agency at will- the principal may still be required to give the agent reasonable notice of termination

Notice of termination

when parties terminate an agency, it is principal’s duty to inform any 3rd party who knew of the relationship that it has been terminated

• no specific notice is required; however apparent authority will continue until 3rd party receives notice of termination

Termination by operation of law

generally no duty to notify 3rd parties: Circumstances include

• Death or insanity; impossibility (subject matter is destroyed); Changed circumstances; Bankruptcy; War (no way to in-force legal rights)

Employment at Will

either party may terminate the employment relationship at any time for any reason, unless violates statutory or contractual rights

• Exceptions- to the doctrine are violation of civil rights or CBAs

Exceptions based upon K theory

courts have held that an implied employment contract exists between the employer and employee. If the employee is fired outside the terms of the implied contract, the employee may succeed in an action for breach of contract, even though no written K exists

• Example- off-duty misconduct not tired to employment

Exceptions based on Tort

the termination of an employee may give rise to a wrongful discharge under tort theory.

• Abusive discharge procedures may result in a lawsuit for intentional infliction of emotional distress

• Fraud may be another grounds; if an employer made false promises

Exception based upon public policy

whistleblowing telling government authorities, upper-level management or media that the employers is engaged in legal activity or unsafe activity

• Exercising legal rights- grievance process

• most common

Wrongful Discharge

when an employer terminates an employee for illegal or unlawful reasons

Laws that regulates hours and working conditions of employees

• Davis-Baron Act

• Walsh-Healey Act

• FLSA

Davis-Baron Act

requires contractors and subs working on Federal government construction projects to pay “prevailing wages”

Walsh-Healey Act

applies to the US government contracts, whereby it requires that a minimum wage as well as OT be paid at 1.5 times the regular pay rate

FLSA

extended wage hour requirements to just about all employees

• exempt vs. non-exempt employees- exempt employees primary duty is management exercise discretion and independent judgement

• Require OT when an employee works over 40 hours a week

Child Labor- the FLSA prohibits the exploration of child law

• Children under 14 can work-but very limited- newspaper delivery; farm work; entertainment; work for parents

• 14-15 can work except hazardous occupations and use limited equipment; limited hours per day (working times as well) and week

• 16-18 hours and working times not restricted; but still cannot work hazardous jobs

• 18 or over – not restrictions

Minimum wage

minimum wages must be paid to all employees for “time worked”

• State v Federal minimum wage

• Paid for time worked- Oakland Raiders case

• Tipped workers- tips plus wages must equal minimum wage- tip credit for wait staff/bartender

State vs Federal Wages laws

state and local legislature frequently enact legislation that may impact federal wage and overtime laws

• State passes a law forbidding an employer from exercising the “tip deduction”

• A state requires at least one day off per week, and employer requires work on that day will require OT for that day (including state holidays)

The Worker Adjustment and Retaining Notification Act(WARN)

applies to all employers with at least 150 employees. The Act requires these employers to provide 60 days notice before implementation of a mass layoff or closing a plant

• Mass layoff is 1/3 of the full-time employees at the job site

• Notice allows employees to find new jobs while still being employed

• Allows states agencies time to help displaced workers find jobs/training/resources

• Bankruptcy will not discharge obligations under the WARN Act

• Fines for violations can be up to $500 a day; employees can recover backpay for each day of violations (up to 60 days) and attorney fees if necessary to enforce their rights

FMLA Overview

• Federal law passed in 1993 and amended in 2008, 2009 and 2013

• Balance work and family responsibilities

• Changing demographics

• Job-protected leave

• Continuation of medical benefits

• Many States have adopted State Versions of FMLA

Employer’s Responsibilities Under the FMLA

• 12 weeks of unpaid, job-protected leave per designated 12-month period

• Guaranteed continuation of medical benefits during an approved FMLA leave

• Job restoration upon return from an approved FMLA leave

• Medical certification required to substantiate need for leave

Employee’s Eligibility

• Must have been an employee for at least 12 months (12 months need not be consecutive)

• Worked 1,250 hours during the 12-month period immediately preceding the date when the requested leave would begin (part time, seasonal, intermittent, temporary employees and students may qualify)

• Only hours actually worked may qualify to be counted towards meeting the 1,250-hours eligibility

• Employees returning from fulfilling his/her National Guard or reserve military obligation must be credited with the hours of service that would have been worked during the period of military service

FMLA Qualifying Reasons

• Employee’s serious medical condition that prevents them for performing the essential functions of the position

• Birth of a child and to care for the newborn child (bonding leave) within a year

• For placement with the employee of a child for adoption or foster care within a year

• To care for family member (spouse, child, or parent of the employee) with a serious qualifying health condition

• Qualifying exigency arising out of the fact the employee’s spouse, child, or parent is a covered military member active duty. Military may qualify for up to 26 weeks of leave.

FMLA Employee Protections

1. Use of FMLA leave time cannot be counted against an employee for attendance policy purposes

2. Use of FMLA time cannot be used as the basis for a negative performance evaluation

3. Use of FMLA time cannot be used as a negative factor in employment actions, such as hiring, promotion, or disciplinary action.

Violation of the FMLA

result in adverse consequences for an employer. Consequences could include the following:

• Damages for lost wages and benefits

• Job reinstatement

• Promotion, if the employees was denied a promotion with back wages

• Penalties and fines from Department of Labor

A successful plaintiff would also be entitled to court costs and attorney’s fees

• If the employee acted in bad faith, the plaintiff could recover 2x the damages

• The supervisor and the employer are generally named in the suit

Employees need not ask for FMLA leave for the employer to be liable

Health, Safety, & Income Security

Under common law, employees injured on the job had to file a lawsuit (sue their employer). Today both the Federal and State government have enacted laws to protect employees who are injured on the job.

• Social Security; Medicare; unemployment insurance and Workers’ comp

OSHA (the act)

is a law that protects workers in the workplace by establishing OSHA (the administration/agency) to establish and oversee workplace safety standards.

• The Agency has established specific safety standards that all employers must follow

  • The standards are based upon the industry

Notices and Reports- the Act requires employers to post certain notices in the workplace, maintain specific records and annual report

• Employers with more than 11 workers are required to keep occupational injuries and illness records for employees

• If there is a work-related fatality or serious injury requiring hospitalization, employers must notify the agency w/in 8 hours of a death and w/in 24 hours for serious injury (hospitalization, disfigurement, amputation, eye loss)

• Failure to do so will result in a fine – OSHA will investigate/inspect the premises

Inspection- OSHA agents may enter and inspect the facility of any establishment covered by the Act

• Employees can also file grievances with Agency and are protected when doing so

Workers’ Comp Laws

establish a procedure to compensate workers for injuries sustained on the job without having to sue his/her employer. All states require employers to provide WC insurance, but specific with regards to coverage vary from state to state

• State have established a fund that all employers pay into, and the fund compensates injured employees

• State may also allow employers to purchase a separate insurance policy to cover employees in the event of an OTJ injury

• Finally, some state allow certain employers to be self-insured- no payments no private policy required

• Exceptions to WC protection- domestic workers; agricultural workers; temp workers.

Requirements for receiving workers comp benefits

• The existence of employment relationship- cannot be an IC

• An accidental injury that occurred OTJ or in the course of employment

  • Cannot be intentional or outside the course of employment

  • Commuting to and from work not covered

Workers comp vs Litigation

if an employee accepts WC benefits, he/she may not be able to sue for injuries caused by the employer’s negligence (waiver)

• Employee benefit- employers cannot avoid liability

  • Employees may sue employers who intentionally injures an employee

Income Security

Both the Federal and State government participate in insurance programs designed to protect employees and their families for the financial impact associated with retirement, disability, death hospitalization and unemployment

• Social Security

• Medicare

• Tax (FICA)

• Private Retirement Plans

• The Federal Unemployment Tax

• COBRA

• Employer-Sponsored Group Health Plans

• Affordable Care Act (ACA)

Social Security

provides for retirement, survivor and disability insurance

• Retired workers covered by SS receive monthly payments based upon how much they made/paid in. Workers classified as disabled may also receive monthly payments based upon their disability

Medicare

is federal government health insurance plan administered by the SS Administration for people over the age of 65 or individuals (under 65) who are disabled

• Originally has two part: hospitalization and routine Drs’ Appointments- Now offers additional prescription drug plans

Tax (FICA)

both employees and employers pay a payroll tax to cover SS and Medicare (thru payroll deductions)

• SS-the basis for the contribution is the employee’s annual wage (max is 145 K) (12.4% half paid by employee and employer)

• Medicare tax rate is 2.9 spilt by the employee and employer (no cap on earnings)

  • Self-employed- employee pays both in full- Incentive for employer to treat employees as IC

Private Retirement Plans

ERISA governs private pensions plan. Does NOT require employers to create them but if they do authorize the DOL to govern them

• Vesting gives an employee a legal right to receive pension benefits when the employee stops working. Generally, all employee contribute to pensions plan immediately

• Employee’s right to contributions vest generally after 5 years of employment

The Federal Unemployment Tax Act

created a state-administered system that provides unemployment compensation to eligible individuals who have lost their job. FUTA requires employers to pay unemployment taxes at regular intervals. Eligibly for benefits:

• Employee must be ready and willingly to work

• Not terminated for cause or voluntarily resigned

• If work is turned down, lose benefits

CORBA

enables employees to continue his/her health insurance coverage after separation from the employer-employee is responsible for all employer premiums

• Generally, employers must inform employees of their COBRA rights and offer COBRA

• Employees have 60 days to elect participation under COBRA and has 18 months to continue coverage

• Penalties for failure to provide COBRA include a tax of up to 10% of the annual cost of the plan or $500K whichever is less

Employer-Sponsored Group Health Plan

HIPAA contains provisions that affect employer sponsored health Insurance plans- it restricts the way employers collect, use and disclose PHI of employees and family members

• Employers must designate privacy officials, distribute privacy notices, and train employees on the proper handling of PHI

• Failure to comply w/ HIPPA can result in civil penalties of up to $100 per violation and potential criminal prosecutions with fines up to $250 K and imprisonment

Affordable Care Act (ACA)

requires employees with 50 or more full-time employees (work 30 or more hours per week) to offer health insurance benefits. Employers offering health insurance benefits to its employees may be entitle for tax credits. Failure to provide HI may result in fines up to $2K for each employee after the first 30 (50/30 rule)

• An employer who offers an insurance plan costing more than 9.5% of the employee’s income can also be assessed a penalty.

Electric Monitoring

more than 50% employers employ some sort of monitoring

• Email messages; social media posts; employers may video record employees and tape phone conversations

Employee Privacy

private employers have some limitations under tort law and state constitutions on what they can and cannot do

• The Electronic Communication Privacy Act- prohibits employers from intercepting an employee’s personal electronic communication unless made on devices and systems furnished by the employer

• Employers can use software to limit access to certain websites

  • Don’t always have 1st Amendment protections

Reasonable Expectation for Employee Privacy Rights

Courts Weigh employer’s interest against the employee’s reasonable expectation of privacy. If on notice of monitoring no expectation of privacy; Courts typically hold that employees do not have an expectation of privacy when using employers' systems

Lie-Detector-Employee Polygraph Protections Act

generally prohibits employers from requiring employees or job applicants to take one

• Exceptions for Government employees and certain security firms

Drug Testing

Drug Testing- Employers can drug test employees

• Public Employers-Government is constrained by the 4th Amendment-Public safety or reasonable suspicion testing

• Private Employers-No 4th Amendment application; maybe governed by State Law or CBAs; Company policy

Title VII

Part of the Civil Rights act which prohibits job discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion, and gender at any stage of employment

• Title VII applies to employers w/ 15 or more employees and labor unions with 15 or more members

• The Ct has held that employers/unions with less than 15 members/employees are not automatically shielded from a lawsuit. All employers are covered

EEOC

is charged with monitoring compliance with Title VII. Employees looking to sue their employers for a discrimination must first file with the this

• can investigate; negotiate a settlement; sue on behalf of the employee; or issue a “right to sue” letter

What is required to bring a class action suit

The Ct has held the employees MUST prove a company-wide policy of discrimination that had a common effect on all Plaintiffs

Intentional Discrimination

is known as Disparate-treatment discrimination-b/c intent is necessary, may be difficult to prove, courts have established certain procedures for resolving disparate treatment cases

To establish a prima Facie case (legitimate claim of intentional discrimination) the plaintiff must show

• The Plaintiff is a member of a protect class

• The Plaintiff applied and was qualified for the job in question

• The Plaintiff was rejected by the employer

• The employer continued to seek applicants for the position or filled the position with a person not in a protected class

  • If the plaintiff can meet these requirements, they have established their prima facie case

  • Current/former employees must show that he/she was fired or treated adversely for a discriminatory purpose