Les 305 Exam 3 Notes
Les 305 Exam 3 Notes
Les 305 Exam 3 Notes
Vocabulary
Assumption of risk - Defense in negligence cases that prevents an injured party from
recovering if it can be established that the injured party realized the risk and engaged in
the conduct anyway.
Bait and switch - Term given to advertising technique in which a low-price product is
advertised and then the customer is told that the product is unavailable or is talked into
a higher-priced product; prohibited by the FTC.
Caveat emptor - Latin term for “Let the buyer beware”.
Comparative negligence - In negligence, a defense that allocates responsibility for an
accident between the plaintiff and defendant when both were negligent and allocates
the recovery in proportion to liability.
Consent decree - For administrative agencies, a type of plea bargain; a settlement
document for an administrative agency’s charges.
Contributory negligence - Negligence defense that bars an injured party from
recovering any damages if the injured party acted in a negligent way and contributed to
her own injuries.
Corrective advertising - FTC remedy that requires a company to run ads explaining
previous deceptive ads or run a new statement in future ads.
Disclaimers - A provision in a contract that eliminates liability such as a warranty
disclaimer or a disclaimer of tort liability.
Express warranty - Expressed promise by seller as to the quality, abilities, or
performance of a product.
Federal Trade Commission (FTC) - Federal agency responsible for regulation of unfair
and deceptive trade practices, including deceptive advertisements.
Implied warranty of fitness for a particular purpose- Warranty given by seller to
buyer that promises goods will meet the buyer’s specified needs.
Implied warranty of merchantability - A warranty that the goods are of average
quality; given in every sale of foods by a merchant.
Misuse - In product liability, a defense based on the plaintiff’s failure to follow
instructions or use of a product for improper purposes.
Privity - Direct contractual relationship.
Strict liability - Liability without fault
Unconscionable - A defense to an otherwise valid contract that is grossly unfair to one
side in the contract.
Outline
Chapter 11
Vocabulary
Age Discrimination in Employment Act - Federal law that prohibits job discrimination
on the basis of age.
Americans with Disabilities Act - Federal law that prohibits discrimination in the
workplace against persons with disabilities and requires employers to make reasonable
accommodations for employees with disabilities who are otherwise qualified to perform
a job.
Bona Fide Occupational Qualification (BFOQ) - A justification for discrimination if it
can be established that gender, religion, national origin, etc., is required for a job.
Civil Rights Act of 1964 - Law that prevents discrimination in housing, education, ad
employment.
Disparate Impact - Theory for establishing discrimination; involves using statistical
analysis to demonstrate that a particular practice or an employer’s hiring practices have
a greater impact on protected classes.
Disparate Treatment - In discrimination law, the application of different rules or
standards to people of different races, genders, or national origins.
Equal Employment Opportunity Act of 1972 - Federal law that established the EEOC
which enforces Title VII.
Equal Employment Opportunity Commission (EEOC) - Federal agency responsible
for the enforcement of Title VII and other federal antidiscrimination laws.
Equal Pay Act of 1963 - Law that prohibits wage discrimination on the basis of age,
race, sex, ethnicity, and so on.
Lilly Ledbetter Fair Pay Act - Federal law that extended the statute of limitations for
employees to bring discrimination suits against employers for pay discrimination; time is
now measured from each paycheck and not limited to 180 days from the act of
discrimination.
Pattern or Practice of Discrimination - In employment discrimination, a theory for
establishing discrimination based on a pattern of dealing with minorities, women, and
certain ethnic groups.
Pregnancy Discrimination Act - Federal law prohibiting discrimination in hiring or
promotion decisions on the basis of pregnancy or plans for pregnancy.
Quotas - Affirmative action plans that dictate a specific number of minority or female
applicants be accepted for jobs, graduate school, and so on. Outlawed by U.S.
Supreme Court; can only have affirmative action goals, not specific quotas.
Rehabilitation Act of 1973 - Federal law prohibiting discrimination by federal
contractors on the basis of a handicapping condition.
Right-To-Sue Letter - Letter issued by the EEOC to a complainant after all necessary
administrative steps have been taken in the case; permits the complainant to pursue
court action.
Sexual Harassment - Unlawful suggestions, contact, or other advances in the
workplace; prohibited under federal law.
Title VII - Portion of the Civil Rights Act of 1964 that prohibits employment
discrimination.
American Competitiveness in the Twenty-First Century Act - Federal law that
increased the number of highly skilled immigrants that are allowed to work in the US.
Antiterrorism and Effective Death Penalty Act - One of several post 9/11/2001
federal statutes passed to increase grounds for deportation and penalties for criminal
conduct for terrorist activities.
Employee Retirement Income Security Act of 1974 (ERISA) - Congressional act
establishing requirements for disclosure and other procedures with relation to
employees’ retirement plans.
Equal Pay Act of 1963 - Act prohibiting wage discrimination on the basis of age, race,
sex, ethnicity, etc.
Fair Labor Standards Act (FLSA) - Federal law covering minimum wages, maximum
hours, overtime, and compensatory time.
Federal Insurance Contributions Act (FICA) - Federal law that requires the joint
contribution by employers and employees of the funds used for the Social Security
system.
Immigration Act of 1990 - Federal law that requires an I-9 form for every employee.
Immigration and Naturalization Act (INA) - Original federal act governing employer
obligations on employing immigrants
Independent Contractor - Person who works for another but is not controlled in her
day-to-day conduct
Minimum Wage - Under FLSA, all employees must be paid a minimum wage.
Occupational Safety and Health Administration (OSHA) - A federal agency that
develops and enforces safety standards in the workplace.
Overtime Pay - Pay rate required for work beyond the maximum forty-hour work week
for covered workers.
Pension Protection Act of 2006 - Federal law that imposes additional funding and
disclosure requirements on employers who have employee pension plans.
Right-To-Work Laws - State laws that prohibit closed and union shops from requiring
employees to join a union in order to work.
Social Security Act of 1935 - Federal legislation that provides for the benefits of Social
Security and the payment mechanisms through FICA deductions.
U.S. Department of Homeland Security (DHS) - Federal agency that is an umbrella
for several existing agencies that was designed to bring together all the functions
related to emergencies, immigration, border security, and antiterrorism efforts.
USA Patriot Act - Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act - Federal law that permits expanded
warrant and investigation techniques for federal agencies as well as the sharing of
information about suspected terrorists; also imposes control on large cash transactions
for banks, real property, and vehicles.
Unemployment Compensation - Funds paid to individuals who are involuntarily
terminated from their jobs while they are seeking new employment.
Workers’ Compensation - State system that provides payments for workers who are
injured on the job
Outline
V. Labor Unions
A. History and Development of Labor Legislation
1. Norris-LaGuardia Act of 1932 (Anti-Injunction Act)
a. Stopped federal courts from issuing injunctions to stop union
strikes
b. Some exceptions:
1. violence
2. lack of control - harm to public
2. Wagner Act - National Labor Relations Act (NLRA) of 1935
a. Gave employees the right to unionize
b. Prohibited employers from firing or discriminating against
union members
c. Established NLRB
1. created to conduct union election
2. created to remedy unfair labor practices
3. Taft-Hartley Act - Labor Management Relations Act of 1947
a. Lists unfair labor practices for unions
b. Addresses secondary boycotts
c. Provides president with authority to have prestrike cooling-
off period when public health and safety are at issue; has
been used in coal and transportation strikes
4. Landrum-Griffin Act - The Labor Management Reporting and
Disclosure Act of 1959
a. Regulates union officials
b. Gives union members a bill of rights
c. Establishes penalties for misconduct
B. Union Organizing Efforts
1. Right to unionize
2. Selecting a union
a. Once selected, union represents all employees
b. Collective bargaining unit determined
1. can be a plant
2. can be workers doing same job in a company
3. NLRB decides based on:
a. type of union
b. duties, wages, and skills of employees
c. relationship to employer
d. wishes of employees
3. Petition, cards, and vote
a. Petition for union representation filed
1. must be supported by signed, dated authorization
cards from 30 percent of unit
2. cards must be signed willingly
b. Election: NLRB monitors
1. restrictions on what employer can do just prior to
election and during campaign
2. unions are subject to reasonable employer rules
4. Certification
a. Exclusive right to represent employees
b. Cannot hold another election for twelve months
c. If collective bargaining agreement in place, cannot hold
election during that agreement's effective time
d. Union members have the right to not participate along with
nonunion members in a strike
5. Nonunion members in the certified workplace
a. Right to organize
b. Cannot mandate membership
c. Cannot force participation
C. Union Contract Negotiations
1. Try to get employer contract - collective bargaining agreement
2. Good faith bargaining required - 8(d) of NLRA
3. Subject matter of good-faith bargaining
a. Mandatory or compulsory subject matters
1. wages
2. hours
3. overtime
4. vacation
5. leaves
6. pay days
7. insurance
8. pensions
9. seniority
10. two-tier wage structure has been an issue in sports
and air pilots' negotiations
b. Permissive subjects for collective bargaining
1. strike roles
2. not unfair to refuse to bargain it
4. Cannot bargain away statutory rights
Example: Cannot agree to have a closed shop
5. Failure to bargain in good faith
a. Constitutes an unfair labor practice
b. Can be the basis of a charge and complaint
6. E-commerce and the use of e-mail for organizing
D. Protected Concerted Activities - Union Economic Pressure
1. NLRA gives union right to engage in concerted activities
2. Public advertisements - permitted
3. Picketing - legal
4. The strike - legal economic weapon
5. The shareholders
a. Unions have contacted shareholders for clout
b. Allowed shareholders to bring public attention to the issues
E. Unfair Employee Practices
1. Slowdown
a. Not a strike or stoppage
b. Employees refuse to do certain work or use certain
equipment
2. Featherbedding
a. Payment for work not actually done
b. Unfair labor practice
3. Secondary boycotts
a. Illegal when coercion involved
b. Third party involved
F. Employer Rights
1. Freedom of speech: can explain their position to employees
2. Right-to-work laws
a. Prohibit closed shops
b. Shops requiring union membership
3. Right to an enforceable collective bargaining agreement
G. Economic Weapons of Employers
1. Plant and business closings
a. Congress has passed a plant closing law
b. Many state and local governments have them as well
c. Laws require notice and time frame before plant is closed
d. Designed to eliminate shock to local economy
e. Federal law is the Worker Adjustment and Retraining
Notification Act of 1988
1. applies to employers with 100 or more workers
2. must give sixty days advance notice of closing that
will affect fifty or more workers
3. must give sixty days notice of layoff that will affect 1/3
or more of work force for 6 months or more
4. some exceptions such as unforeseeable
circumstances and seasonal businesses and
construction
5. penalties include back pay and benefits and fines of
$500 per day for each day notice not given
2. Cannot use temporary closing or send work away (runaway shops)
3. Plant flight - legal if there are economic reasons for transferring
work
4. Lockout - legal for economic reasons; legal to prevent strike but not
to prevent union certification
5. Conferring benefits - a violation if done temporarily
6. Bankruptcy - legal
VIII. Employment Discrimination: Title VII of the Civil Rights Act (Fair Employment
Practices Act)
A. Prohibits Discrimination on Basis of:
1. Race
2. Color
3. Religion
4. National origin
5. Sex
6. Pregnancy
B. Application of Title VII
1. Groups covered
a. Employers with fifteen or more employees (for at least
twenty calendar weeks)
b. Labor unions with fifteen members or more and/or a hiring
hall
c. Employment agencies that work for covered employers
d. State and local agencies
2. Noncovered employers
a. Employment of aliens outside the United States
b. Religious corporations, and so on, when hiring for religious
positions
c. Congress
d. Federal government (they have a separate scheme)
e. Indian tribes
3. Employment procedures covered
a. Hiring
b. Compensation
c. Training
d. Promotion
e. Demotion
f. Transfer
g. Fringe benefits
h. Rules
i. Working conditions
j. Dismissals
k. For employment agencies - referrals
IX. Theories of Discrimination Under Title VII
A. Disparate Treatment
1. Treating employees or potential employees differently on the basis
of race
2. McDonnell Douglas Corp. v. Green established the required
elements (U.S. Supreme Court)
a. Plaintiff belongs to a racial minority
b. Plaintiff applied for and was qualified for job
c. Plaintiff was rejected (despite qualifications)
d. Job remained open
3. Employer's burden of proof to show nondiscriminatory reason for
the nonhire
B. Disparate Impact
1. Not intentional discrimination
2. Rule results in different effect on groups
Example: Minimum height and weight requirement for prison
guards had the effect of eliminating women
3. Mostly statistical cases showing impact
4. In Wards Cove Packing, Inc. v. Atonio, 490 U.S. 642 (1989), the
Supreme Court put greater burdens of proof on Title VII plaintiffs
5. In response to Wards Cove case, the U.S. Senate and House
passed the Civil Rights Act of 1991 that has been called a "quota
bill." Key provisions of the bill include a provision for jury trials in
discrimination cases. This provision carried strong employer
objections because presently only the Age Discrimination Act
carries jury trial requirements and employees have been quite
successful with recoveries under the Act due to the jury sympathy
factor of "someday I’ll be that age too." The act provides for
compensatory damages whereas now the only remedies are back
pay and reinstatement. In direct response to the Wards Cove
decision, the legislation requires employers to carry the burden of
business necessity in establishing a defense to a Title VII case.
6. 1991 Amendments also require the plaintiff employee to show
causation between the practice of the employer and the disparate
impact
C. Pattern or Practice of Discrimination - Generally involves a statistical
comparison
Example: 38 percent of work force in a community is black; 6 percent of
an employer’s work force is black
Chapter 12
Vocabulary
Outline
I. What Is a Contract?
A. Definition
1. Set of promises for breach of which the law gives a remedy
2. Defined in Restatement of Contracts - American Law Institute (ALI)
B. Helps Businesses with Planning