COB 318 McCarthy Exam 4

Administrative Law

Creates 90% of the laws practiced today

"4th" branch of government

Unelected bureaucrats

Steps in Administrative Process

1. Delegation

2. Rulemaking

3. Enforcement

4. Adjudicate

5. Capture

Steps in Delegation for Agencies

1. Create Agency

2. Delegate legislative Authority

Safety Mechanism in place for delegation of agencies

Judicial review

Types of Judicial Review

1. Arbitrary and Capricious Standard

2. Fair Notice Rule

Arbitrary and Capricious Standard

Exceed your authority

No rational explanation for your decision

Loving v IRS

Arbitrary Case

IRS wanted to regulate all tax professionals

Fair Notice Rule

Have to provide warning that a new rule is in place or that the rule has been changed

FCC v FOX TV station

Fair Notice Case

Legislative review

Congress can repeal delegated rulemaking authority

INS v Chadha

Legislative Review Case

Admin power over deportation

Steps in Rulemaking for agencies

1. Impetus

2. Notice

3. Comment Period

4. Issuing a final rule in the code of federal regulations

Impetus

Either congress, an admin agency or a private party (industry)

Notice

Publishing a new rule has to be done in the federal register and a .gov website

Reasonable period for a notice

30-90 days

Types of Enforcement

1. Engage in sight inspections

2. Subpoena

3. Search Warrant

4. Warrantless Search

Adjudicate

Judge their own rule violations

Agency employs Administrative Law Judge

Steps taken by an Administrative Law Judge

1. ALJ initial order

2. Appeal to federal court

3. Judge issues a final order (Rarely overturn initial order)

Chevron USA v National Resources Defense Council

Appeal to a federal court case

EPA judge interpretation of Stationary source under clean air act

Chimney Stocks

Craker v DEA

Appeal to a federal court case

DEA denies research professor to grow and study weed

Public Accountablity

1. Freedom of Information Act

2. Government in Sunshine act

3. Regulatory flexibility act

4. small business regulatory enforcement fairness act

Freedom of Information Act

Any person can request administrative records

Freedom of Information Act exceptions

1. National Security

2. Confidential Information

3. Financial Information

4. Criminal Investigation

government in sunshine act

Public can come and sit in on meetings

Except for Meetings involving rulemaking

regulatory flexibility act / Small business regulatory enforcement fairness act

Requires an analysis of the cost a regulation will impose on small business and must consider less burdensome alternatives

Robber Barons

Refers to the industrialists or big business owners who gained huge profits by paying their employees extremely low wages. They also drove their competitors out of business by selling their products cheaper than it cost to produce

Race to the bottom

a dynamic in which states compete to attract business by lowering taxes and regulations, often to workers' detriment

First states to enter the race to the bottom

New Jersey

Deleware

Lobbying

Engaging in activities aimed at influencing public officials, especially legislators, and the policies they enact.

Revolving Door

government appointee that previously worked for an industry of interest

Richard Olery v Leland Stanford

Revolving Door Case

Kefauver-Harris Amendment to the FDA act

1. Clinical Trials (Safety and Efficacy)

2. Clinical Bias (failed trials ignored)

3. Publication Bias (Ghostwriters + honorarium)

FDA Modernization Act

- Direct to consumer advertising ("Ask your doctor...")

- Detailing (Off-Label Prescriptions)

- Guideline (Hypertensions + Once a day for life)

Non Persecution Agreement

the agency refrains from filing charges to allow the company to demonstrate its good conduct

Deferred Prosecution agreement

An agreement between a prosecutor and a corporation to delay prosecution while the company takes remedial actions.

Scott Gohlies

Former FDA ceo

Works for Pfizer

Stephen Berenson

CEO of Moderna

Robert Califf

Google health and FDA commissioner

Alex Azar

Eli Lilly

HHS

Julie Geldberding

CDC

MERCK

Curtis Wright

FDA

oxytocin, Purdue

Mercks Viaxx

Made 11 billion

involved in 60,000-500,000 deaths

Entered into NPA, paid 900M fine and 40M in severance

GSK Paxil

Entered into NPA

3 Billion Fine

Purdue Oxycotin

NPA

8 billion fine

Principal-Agent Relations

Agent (Employee) binds and obligates the principal (Employer) with regard to 3rd party transactions and injuries.

The agent acts on behalf of or instead of the employer

Employment Agency Issues

1. Formation

2. Duties

3. Liability

Employers Liability for Employees Action

Independent contractors

contract liability

tort liability

criminal liability

Types of Agreements for forming a Principal-Agent Relationship

Express

Implied

Express agreement for a Principal-Agent relationship

principal delegates authority to act in definite terms, meaning the agent is to do what is exactly stated in their agreement

implied agreement for a Principal-Agent relationship

the principal also delegates authority to act via implication with regard to tasks commonly released to job

Meaning some tasks the principal will ask you to do will not specially be stated in their agreement

Equal Dignity Rule for Principal-Agent relationships

Written contract require written authority

Ratification

subsequent affirmation of agency

3 Ways an Agreement can be said

Written

Oral

Conduct

Estoppel / Apparent Authority

Employer created the impression that the person was an employee

Operation of Law

Principal-agent relations can arise if there is an emergency

Would the principal also do the same in the given situation

Principal (Employer) Duties

1. Compensation (Timely)

2. Reimbursement (Authorized expenditure)

3. Indemnification (Authorized Loss)

4. Cooperation (Cannot frustrate performance)

Agent (employee) duties

1. Perform Duties (Reasonable diligence + ordinary care)

2. Notification (Word-related issues)

3. Loyalty (stealing opportunities or information)

4. Obedience (lawful and clearly communicated orders)

5. Accounting (Disclose financial details)

Independent Contractor

Person paying the contractor cannot dictate or control the specific details of the work by them

Examples of Independent contactors

Construction

Artisan

Service

Consultant

Independent contractor test

1. Control (how much control over the work)

2. Close Supervision

3. Similar Tasks

4. Supply tools

5. Special Skills

6. Duration of task

7. regularity of payment

uber paradigm

debate on whether drivers are either independent contractors of employees of Uber.

Disclosed Principal

agent never personally responsible for work related contract

Undisclosed/partially disclosed principal

Agent and principal both personally responsible for the work-related contract

Stonhard v Blue ridge Farms LLC

Agent and Principal are both responsible case.

The agent never informed the party that they worked with Stonhard on behalf of blue ridge

Respondeat Superior

Principal liable for all of the agents torts committed in the scope of employment

Scope of Employment Test

1. Principal Authorized act

2. Time, place, purpose of act

3. Routine (common) act

4. Principal could reasonably anticipate act

5. act advanced principals interest

6. Not agents private interest

7. private supply tools

When might a principal have to answer for agents criminal liability

Never, unless they authorized it or participated

Fair Labor Standards Act

act which provided for a minimum wage and restricted shipments of goods produced with child labor

United States Minimum wage

7.25

Virginia Minimum Wage

7.25

DC Minimum Wage

15

Washington Minimum Wage

13.50

Overtime Hours Calculation

Hours worked + Hours above 40/week * 150%

Overtime Hours Exclusion

Salaried workers such as accountants, executives, and lawyers

Child Labor Laws Under 14

Must be a family business, odd job, or entertainers

Child Labor Laws 14-15

Hourly Limitation

Family and Medical Leave Act

Allows employees of government agencies and companies with more than fifty employees to take up to three months of unpaid leave during or after a pregnancy.

Maternity Leave by Country

U.S. - 12 weeks

Finland - 161 weeks

Germany - 58 weeks

Japan - 58 weeks

France - 42 weeks

Ballard v Chicago District Park

Sick Leave Case

Took leave for sick mother but went on vacation, FMLA does not say where leave must take place

Social Security Act

guaranteed retirement payments for enrolled workers beginning at age 65

Tax deduction for Social Security

7.65%

Federal Unemployment Tax Act (FUTA)

Law that requires employers to pay unemployment taxes to the federal government.

Requirement to be considered eligible for the unemployment tax act

Have to be laid off from the job, cannot be fired or resign

Virginias Unemployment tax act

378/week for 26 weeks

Massachusetts Unemployment Tax act

795/week for 30 weeks

State Law: Workers Compensation

- Have to be an employee to receive (not a independent contractor)

- Must be from an accidental injury

- Scope of employment

Medicaid

Federal program that provides medical benefits for low-income persons.

Affordable Care Act

- Employers with 50+ employees must provide healthcare (via salary deduction)

- Must provide own healthcare if self-employed or under 50 employees

Protected classes under Title VII

race

gender

religion

age (40+)

disability

sexual orientation

transgender status

Discrimination claim steps

1. Make claim through Equal employment opportunity commission

2. EEOC will either Take action of No action

3. If no action, requires private lawsuit

Reasons to file for discrimination

1. Intentional Discrimination / Disparate Treatment

2. Unintentional discrimination / Disparate Impact

Intentional Discrimination / Disparate Treatment

- Prima Facie case (Protected class)

- Person is qualified for the job

- rejected

- person hired instead was non-protected

- employer offers a valid reasons and must prove "pretext"

Unintentional discrimination / Disparate Impact

occurs when a protected group of people is adversely affected by an employer's practices, procedures, or tests, even though they do not appear to be discriminatory

Religious Accomodations

1. Observing of a sabbath

2. dress code

3. prayer schedule

4. diet

Types of Sexual Harassment

quid pro quo and hostile work environment

quid pro quo

this for that

Hostile Work Environment

- repeated unwanted sexual advances

- must put the person on notice to stop

Roberts v Mike Towing

Hostile work environment Case

secretary being harassed

Title VII Retaliation

Employer cannot punish you for being in a title VII case

Moralez-cruz v University of Puerto rico

title VII retaliation case

professor took away year of research for reporting him