BLAW 3310: Test 3: miller uta

Employment-at-will doctrine

Refers to the presumption that employment is for an indefinite period of time and may be terminated either by employer or employee.

wrongful termination

A cause of action an employee may have if dismissed for an improper reason, such as exercising a public right or other interest protected in the employment relationship, such as protected class status under title VII

"good faith" exception in California

Texas exceptions (jury duty

refusal to do an illegal act

An employer cannot fire an employee for refusing to commit illegal act, such as falsifying reports required by a government agency or refusing to commit perjury at trial.

Sabine case re refusing to obey order to break law

military service obligation)

An employer cannot fire an employee for performing a public duty, such as reporting for jury duty or military service.

post-employment covenant not-to compete must be "reasonable" in Texas and none in CA

- cannot recruit fellow employees for another company when you leave your current place of employment. Can do this in Texas.

"no raiding post employment clause

Designed to protect an employer's business interest in keeping its workforce intact even after the departure of key employees. Typically, the departing employee is forbidden from soliciting all current employees as well as any employee who resigned within six months of the employee's departure date. If the employee does solicit these individuals, the employer may sue the employee of breach of contract.

commerce clause

Occupational Safety Health Act

States the employers must provide employees a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm" and that employers must "comply with occupational safety and health standards" issued by OSHA

worker's compensation statute

Provide for awards to workers or their dependents if a worker incurs an injury or an illness in the course of employment. The worker is freed from bringing a legal action to prove negligence by the employer.

"course and scope of authority" as basis of employer liability

Fair Labor standards Act

Established federal minimum wage requirements in 1938. Also established standards for overtime pay.

minimum wage (how determined)

Generally averaged about 50% of the average manufacturing wage. Requires employers to pay a fair wage to employees and does not allow workers to be paid so little that they have trouble buying the necessities of life.

overtime (how to compute payment for hours over 40 in a week)

If you are an hourly employee and work over 40 hours given week, you get 1.5x every hour spend working over 40.

Tip credit

- when you are hired to be a server they only have to pay you $2.13 the tips are what makes up for the $7.25

re regulation re $46,000 salary before exempt from overtime Security benefits

6.2% for SS plus 1.45% for Medicare b= 7.65% contribution by employer in behalf of employee

The government doesn't trust you to save, so they set aside 7.65% for your future. The employer matches that 7.65% to get it to 15.3%

45% for Medicare b= 7.65% contribution by employer in behalf of employee

employee contribution

- whatever you contribute to your employers they usually match you either 100% or less. Say you contribute $60 each month they give back either $60 or $30, it depends.

retirement defined benefit plans

Employee Retirement Income Security Act is directed most employee benefit plans, including medical, surgical, or hospital benefits; sickness, accident, or disability benefits; death benefits; unemployment benefits; vacation benefits, apprenticeship or training benefits; day-care centers; scholarship funds; prepaid legal services; retirement income programs; and deferred income programs.

- You can keep your contributions to your company even before retirement. Usually can keep it after 5 years.

defined contributions plans (e.g. 401(k) plans

- Retirement plans through corporations. Company will contribute up to a certain percentage of what the employee contributes.

contribution by employee

Employee adds a certain percentage each month to set aside in the 401(k)

matching contribution by employer

Employers will generally match up to certain percentage point of the money that an employee sets in his 401(k)

vesting

Establishing by Employee Retirement Income Social Security Act. The employee becomes the owner of the funds in a retirement program. The requirement that pension benefits become the property of workers after a specific number of years of service to an employer.

labor law

Laws which regulated how workers could be paid and treated

National Labor Relations Act

passed by Congress in 1935, guarantees workers the right of collective bargaining; also known as the Wagner Act.

NLRB (National Labor Relations Board)

administrates and interprets the NLRA and adjudicates labor cases

labor organizations

authorization cards

A card signed by an employee at the worksite targeted to possible unionization; the card authorizes the union to request that an election be held to determine if all workers will be represented by the union.

employer right to refuse recognition based on cards

representation election by secret ballot

At least 30% of workers in a current or proposed bargaining until sign a request to have an election to determine if all workers in that workplace will be represented by a particular union.

bargaining unit agent

The union recognized and certified by the National Labor Relations Board, upon election by majority of the workers, to be the exclusive representative of employees in a bargaining unit (worksite) to determine working conditions and wages.

collective bargaining in good faith

The process by which the employer and the union, on behalf of all employees in a collective bargaining unit, negotiate a contract, setting forth the terms and conditions

mandatory subjects of collective bargaining

Under the National Labor Relations Act, all terms and conditions of employment that must be discussed by employers and unions or an unfair labor practice occurs.

right to work state

Prohibit unions from forcing employees who do not want to pay union dues or agency fees to pay such dues or fees even if the employees are represented by the union under a collective bargaining agreement.

"good faith" as restriction on employer right to discipline employees per most labor contracts

grievance/arbitration clause

Disputes between employers and unions or represented employees are resolved by an internal grievance procedure. If the results are not satisfactory, an outside labor arbitrator chosen under the contract hears disputes.

seniority (start date (how to apply seniority)

strikes

A work stoppage by employees for the purpose of coercing their employer to give in to their demands.

employer right to hire replacements

If an agreement to a new contract cannot be made between the union and the employer, and the union has called for a strike, the employer may hire new worker and keep using existing worker who cross the picket line.

"scab labor"

A worker that can cross the picket line of the union strike and work for the employer. Not actually part of the company... an outside worker that is not connected to the union.

lockout

Refusal by an employer to allow employees to work.

unfair labor practice charges

Actions by employers or unions that impair the goals of the NLRA.

Employment-at-Will Doctrine

doctrine under the common law that says unless otherwise explicitly stated, an employment contract was for an indefinite term and could be terminated at any time by either party without notice.

"Good Faith" exception in California

honesty in fact in the conduct or transaction in question

Texas Exceptions for Employment-at-Will Doctrine

Jury duty; refusal to do an illegal act; Sabine case; military service obligation

Employee Contractor

Control test: could the employer have exercised control over how the work is done? Who do the tools belong to

Borrowed EmployeeL both temp agency and employer can be employers

Dual employment: Who's exercising control? Either or both can be liable.

Independent Contractor

one who provides service in the course of an occupation, who follows the employers direction as to the result of the work but does the work according to their own methods, unlike a servant or employee, who is subject to detailed control in the performance of work.

Post Employment Covenant not to compete

when an employer requires an employee, as a condition of employment, to agree not to compete with the employer in the future for a certain time and in a certain location; such agreements are not favored in some states

"No Raiding" post employment clause

employees will not recruit other employees for another company when they leave the one they are at

Commerce Clause

part of the U.S. Constitution that gives Congress the power to regulate interstate commerce; the basis of much federal regulation

Occupational Safety and Health Act (OSHA)

states that employers must provide employees a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm"

Workers' Compensation Statute/Laws

statutes that provide for awards to workers or their dependents if a worker incurs an injury or an illness in the course of employment. Under such laws, the worker is freed from bringing a legal action to prove negligence by the employer

"Course and Scope of Authority" as basis of employer liability

Fair Labor Standards Act

1938 act which provided for a minimum wage and restricted shipments of goods produced with child labor

How is Minimum Wage determined

factors such as poverty threshold, prevailing wage rates as determined by the Labor Force Survey, and socio-economic indicators (i.e. inflation, employment figures, Gross Regional Domestic Product, among others), which insures better workers protection.

"Tip Credit" for waitstaff

allowed to pay waitstaff 2.13 an hour because tips will make them earn more than 7.25 an hour

How do you compute over-time for over a 40 hour week?

multiply the straight time rate of pay by all overtime hours worked PLUS one-half the employees hourly regular rate of pay times all overtime hours worked

Social Security Benefits

- Were computed on a workers average monthly wage (AMW) if the person became eligible for benefits before 1979. Since 1979, the calculation has been based on the workers average indexed monthly earnings (AIME)

6.2%+1.45%=7.65% contribution by employer on behalf of employee

amount taken out of payroll for SS and medicare

Employee Contribution

same as contribution by employee

Medicare

federal health insurance program, administered by the Social Security Administration that provides health care for old people

Defined Benefits Plan

company pension plan where employee's pension payments are calculated according to length of service and the salary they earned at the time of retirement

Defined Contributions Plan (401K plans)

retirement plan where the employee, employer, or both make contributions on a regular basis

Contribution by Employee

company sponsored retirement plan where the employee may elect to have a portion of each paycheck deposited into a retirement account owned by the employee and held in their name

Matching Contribution by Employer

an employees 401k program. employer matches whatever $ the employee puts in

Vesting

when an employee becomes the owner of the funds in a retirement program

Labor Law

also known as employment laws, mediated the relationship between employees, employers, trade unions, and the govt.

Uniform Commercial Code

A collection of laws that governs various types of business transactions.

Article 2 of the UCC

governs the sale of goods

goods

Items purchased to satisfy needs and wants

Merchants

people who buy and sell goods

Warranties of Title

implied warranty that title to the goods is good and transfer is proper

Implied Warranty of Merchantability

A warranty that goods being sold or leased are reasonably fit for the ordinary purpose for which they are sold or leased, are properly packaged and labeled, and are of fair quality. The warranty automatically arises in every sale or lease of goods made by a merchant who deals in goods of the kind sold or leased.

fitness for a particular purpose

A warranty, imposed on any seller/lessor who knows that the buyer/lessee is relying on the seller's/lessor's skill and judgment to select suitable goods, that the goods being sold or leased are fit for the particular purpose for which the buyer/lessee wishes to use the goods.

What is an express warranty?

a written guarantee

requirements contract

An agreement in which a buyer agrees to purchase and the seller agrees to sell all or up to a stated amount of what the buyer needs or requires.

output contract

An agreement in which a seller agrees to sell and a buyer agrees to buy all or up to a stated amount of what the seller produces.

disclaimer of warranty

a negation or restriction of the rights under a warranty given by a seller to a buyer

what is a cure

the seller generally has a limited right to cure, or fix the problem, when the goods or delivery under a contract fails to meet the specified contract terms

What is cover?

a remedy available to a buyer who has received an anticipatory repudiation of a contract for the receipt of goods

what is a tender

an unconditional offer to perform by a person who is ready, willing, and able to do so

Perfect Tender Rule (UCC)

Perfect Tender Rule - Terms of K for goods enforced exactly.

Buyer has three options:

1) Reject goods by notifying seller w/i reasonable time after delivery.

- May bring action against seller for breach of K

- May resell goods if seller neglects to provide instructions or goods will quickly perish, and offset against damages. May recover reasonable costs of resale.

2) Accept the goods

- Must pay K price

- May seek damages for non-conformity if notified S that goods are non-conforming.

- Acceptance may be revoked if nonconformity substantially impairs value of goods, and was initial unaware due to difficulty of discovery or S's assurances.

3) Reject and Accept in Part

- Rights for accepted and rejected goods as applicable

Sole proprietorships

businesses owned and operated by one individual; the most common form of business organization in the United States

Assumed name certificate (d/b/a)

Any type of entity structure can file an Assumed Name, whether you are operating as a sole proprietor, a partnership, a corporation, or an LLC.

liability of sole proprietorship

unlimited liability

Respondeat Superior Doctrine

doctrine that makes an employer liable for the tortious acts of employees committed in the scope and furtherance of their employment

Tax Treatment of Partnerships

Federal (and most state) tax laws treat a partnership as a "pass through" entity, with profits, losses, and taxes attributed on a pro-rata basis to the partners.

The partnership itself pays no taxes and is responsible only for filing an information return with the IRS.

personal liability shield

separating the individual from business liabilities is there to enable entrepreneurs with the ability and incentive to go out and engage in business enterprises without fear that their personal assets will be at risk from business liabilities that may arise.

articles of incorporation

a written legal document that defines ownership and operating procedures and conditions for the business

Charter

A document that gives the holder the right to organize settlements in an area

Bylaws

A set of governing rules adopted by a corporation or other association.

Registered Agent

A person or corporation that is empowered to accept service of process on behalf of a corporation

principal place of business

The state where a corporation conducts a majority of its business, or, if this is not certain, the state where corporate headquarters is located.

Duration of Corporation

Can have perpetual existence

double taxation

feature of taxation that allows stockholders' dividends to be taxed both as corporate profit and as personal income

S corporation

A unique government creation that looks like a corporation but is taxed like sole proprietorships and partnerships

shareholders/directors/ employees and officers

3 parts of corporations