BLAW2301 Exam III

Agency Relationship

A relationship in which one person (the agent) agrees to perform tasks for and under the control of another person (the principal).

Consent

The mutual agreement between the principal and agent to establish an agency relationship.

Control

The principal's authority to direct and supervise the actions of the agent.

Fiduciary Relationship

A relationship of trust and confidence, where the agent is obligated to act in the best interest of the principal.

Duty of Loyalty

The agent's obligation to act loyally and in the best interest of the principal.

Duty of Care

The agent's duty to act with reasonable care and skill in performing tasks for the principal.

Duty to Provide Information

The agent's duty to provide the principal with all relevant and accurate information.

Termination of Agency Relationship

The end of the agency relationship, which can occur due to various reasons such as death, bankruptcy, or violation of duty.

Principal's Liability

The principal's responsibility for the acts and statements of the agent, either through authority or ratification.

Agent's Liability

The agent's responsibility for their actions, depending on the level of disclosure and authorization from the principal.

Respondeat Superior

The principle that holds an employer liable for the physical torts of an employee acting within the scope of employment.

Gig Economy

A labor market characterized by the prevalence of short-term contracts and freelance work, often facilitated through mobile apps.

Proposition 22

A California proposition that classifies app-based drivers as independent contractors rather than employees, with certain limited protections.

Principal

The person who is responsible for the actions of an employee while they are at work.

Vicarious Liability

The legal concept that holds principals responsible for the acts of their agents.

Frolic

When the principal is not liable for the actions of an employee who has abandoned their business.

Indemnification

The ability of a principal to sue an agent if the injured party recovers from the principal.

Nonphysical Torts

Torts that only cause harm to reputation, feelings, or wallet.

Family and Medical Leave Act (FMLA)

Guarantees up to 12 weeks of unpaid leave for childbirth, adoption, or a serious health condition.

Employee at Will

A worker without an employment contract who can be fired for any reason.

Wrongful Discharge

Firing an employee for a reason that violates basic social rights, duties, or responsibilities.

Refusing to violate laws

Employees cannot be discharged for refusing to break the law.

Promises Made During the Hiring Process

Promises made to job applicants are generally enforceable.

Employee Handbook

A document that creates a contract between the employer and employee.

Covenant of Good Faith and Fair Dealing

Requires both parties to behave reasonably and make an honest effort to meet the contract's spirit and letter.

Qualified Privilege

Employers who give references are liable only for false statements they know to be false or that are motivated by ill will.

Defamation

Employers may be liable for defamation when they give false references about an employee.

Workplace Bullying

Extreme and outrageous behavior by a worker that may lead to liability for intentional infliction of emotional distress.

Whistleblowers

Employees who disclose illegal behavior on the part of their employer.

False Claims Act

A statute that allows whistleblowers to bring lawsuits against those who defraud the government.

Sarbanes-Oxley Act of 2002

Protects employees of publicly traded companies who provide evidence of fraud.

Constitutional protection for government employees

Government employees have a right to free speech under the U.S. Constitution.

Statutory protection for federal employees

Laws that prevent retaliation against federal employees who report wrongdoing.

Off-Duty Activities

Employers have the right to fire workers for off-duty conduct, unless protected by specific laws.

Workplace Safety

The Occupational Safety and Health Act (OSHA) ensures safe working conditions.

Guns

Employers have the right to prohibit guns in the workplace, but some states have laws preventing this.

Financial Protection

Laws that provide employees with financial security, such as the Fair Labor Standards Act and Workers' Compensation.

Privacy on Social Media

Employers have the right to monitor workers' electronic communications under certain circumstances.

Employee Polygraph Protection Act of 1988

Employers may not require or suggest lie detector tests, except in specific cases.

National Labor Relations Act

Protects the right of workers to form unions and engage in collective bargaining.

Organizing a Union

The process of forming a union, including authorization cards, petitions, and elections.

Collective Bargaining Agreement (CBA)

A contract between a union and a company that governs wages, hours, and conditions of employment.

Concerted Action

Tactics taken by union members to gain a bargaining advantage, such as strikes and picketing.

Equal Pay Act

Prohibits paying employees of one sex less than employees of the opposite sex for equal work.

Civil Rights Act of 1866

Prohibits racial discrimination in both public and private employment.

Equal Pay Act

A law that prohibits employers from discriminating based on sex and requires equal pay for equal work.

Title VII of the Civil Rights Act of 1964

A law that prohibits employers with 15 or more employees from discriminating based on race, color, sex, or national origin.

Adverse employment action

Any negative action taken by an employer that affects an employee's terms or conditions of employment.

Equal Employment Opportunity Commission (EEOC)

The agency responsible for enforcing Title VII and investigating claims of discrimination.

Disparate treatment

A type of illegal activity where a plaintiff argues that they are similarly situated to another person but are treated differently based on a protected category, resulting in discrimination.

Prima facie

Something that appears true upon first look or initial evidence.

Disparate impact

A type of illegal activity where a plaintiff presents evidence that an employment practice, although posing as non-discriminatory, disproportionately impacts one group more than another.

Hostile environment

A type of illegal activity where an employee experiences severe verbal or physical conduct of a sexual nature that interferes with their ability to work.

Quid pro quo

A type of sexual harassment where one person demands sexual favors in return for something else.

Retaliation

When an employer takes action against an employee for complaining about discrimination or participating in a discrimination investigation.

Religion

Employers cannot discriminate against a worker based on their religious beliefs and must provide reasonable accommodations unless it causes undue burden.

Sex

Gender must be irrelevant to employment decisions and employers cannot discriminate based on sex.

Family responsibility

Parenthood is a protected category under Title VII, and employers cannot discriminate against employees based on their family responsibilities.

Sexual orientation

Half the states and hundreds of cities have statutes that prohibit discrimination based on sexual orientation.

Gender identity

Discriminating against someone for being transgender is a violation of Title VII.

Defenses to charges of discrimination

Merit, seniority, bona fide occupational qualification (BFOQ), customer preference, safety, privacy, authenticity.

Affirmative Action

A policy aimed at remedying the effects of past discrimination by promoting diversity and equal opportunity in employment and education.

Pregnancy Discrimination Act

Prohibits employers from discriminating against women because of pregnancy and requires reasonable accommodations.

Age Discrimination and Employment Act (ADEA)

Prohibits employers with 20 or more employees from discriminating against individuals who are 40 years or older.

Rehabilitation Act of 1973

Prohibits discrimination on the basis of disability by the executive branch, federal contractors, and entities that receive federal funds.

Americans with Disabilities Act (ADA)

Prohibits employers with 15 or more employees from discriminating against individuals with disabilities and requires reasonable accommodations.

Genetic Information Nondiscrimination Act

Prohibits employers from requiring genetic testing or discriminating against workers based on their genetic makeup.

Sole Proprietorship

An unincorporated business owned by one person with personal liability and limited financing options.

Corporations

A form of organization with separate legal entity status, limited liability, and the ability to issue stocks.

Limited Liability Companies (LLC)

Provides limited liability like a corporation but with the tax status of a flow-through entity, and an oral operating agreement.

Social Enterprises (SEs)

Organizations that pledge to behave in a socially responsible manner while pursuing profits, focusing on the triple bottom line.

Partnership

An unincorporated association of two or more co-owners who operate a business for profit, with personal liability and easy formation.

Limited Liability Partnerships (LLP)

A partnership with limited liability for partners and the tax status of a flow-through organization.

Professional Corporations

Corporations where all shareholders must be members of the same profession, with limited liability but complex tax issues.

Joint Ventures

A partnership for a limited purpose, sharing liability for taxes and debts among participants.

Franchises

A business arrangement where one party grants another party the right to operate a business using its trademark, system, and support.

Patents

Grants inventors the exclusive right to prevent others from making, using, or selling their inventions for a limited time.

Copyrights

Gives creators the exclusive right to reproduce, distribute, and perform their original works for a limited time.

First Sale Doctrine

Permits the owner of a lawfully made copy of a copyrighted work to sell or dispose of the copy.

Fair Use Doctrine

Permits limited use of copyrighted material without permission for purposes such as criticism, comment, news reporting, scholarship, or research.

Facts

Information that is based on reality and receives less protection than fiction.

Education

The process of acquiring knowledge and skills, which can be stifled if the use of facts is not permitted.

Copyright Infringement

When the use of copyrighted material, even if minimal, involves the "heart" or most important part of the work, it is more likely to be considered an infringement.

Effect on Potential Market

Courts generally do not permit a use that will deprive the copyright owner of income or decrease revenues from the original work.

Moral Rights

Intellectual property rights that protect the creator's personal and reputational values, such as the right of attribution and the right of integrity.

Digital Millennium Copyright Act (DMCA)

Legislation that makes it illegal to delete copyright information, circumvent encryption technologies, distribute tools for circumvention, and holds internet service providers not liable for posting copyrighted material if they promptly remove it upon notice.

Berne Convention

An international agreement requiring member countries to provide automatic copyright protection to works created in other member countries, which lasts until 50 years after the author's death.

Trademarks

Combinations of words and symbols used by businesses to identify their products or services and distinguish them from others.

Lanham Act

Governs federal trademarks and provides validity for 10 years.

Types of Marks

Trademarks (affixed to goods), service marks (identify services), certification marks (attest to meeting certain standards), and collective marks (identify members of an organization).

Registration

The process of officially registering a trademark, which provides national validity and notifies the public of its use.

Advantages of Registration

National validity, public notification, incontestability after five years, higher damages available, and the right to use the mark as an internet domain name.

Distinctiveness

A requirement for a trademark to clearly distinguish one product from another and identify its source.

Fanciful and Arbitrary Marks

Made-up words (fanciful) or existing words that do not describe the product (arbitrary) used as trademarks.

Suggestive Marks

Indirectly describe the product's function, qualities, or characteristics.

Descriptive Marks

Directly describe the product and can only be trademarked if they have acquired secondary meaning.

Categories that Cannot be Trademarked

Generic trademarks, personal names (unless associated with a specific business), geographical terms (unless used arbitrarily), deceptive marks, and marks similar to existing ones.

Trademark Dilution

Occurs through blurring (lessening a mark's capacity to identify) and tarnishment (association with unwholesome goods or services).

Infringement Remedies

Destruction of infringing material, up to three times actual damages, infringer's profits, and attorney's fees.

Trade Secret

A formula, device, process, method, or compilation of information that gives a business owner an advantage over competitors.