Term
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Definition
| Relationship between the employee and employer where the employee can quit at any time, for any reason and the employer can fire someone at any time for any reason other than discriminatory reasons |
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Term
| Other Types of Employment |
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Definition
- Express Agreement for a set duration- where you sign a contract to work somewhere for a set amount of time.
- Employment based on the existence or non-existence of certain conditions- ex. In marketing you can only remain hired if you keep up with a certain sales quota
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Term
The 4 Exceptions to Emplyment At-Will,
list and describe |
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Definition
- Prevent Discrimination- under Title 7 you cannot be fired because of discrimination if you are in a protected group
- Express Legal Rights- you can't be fired for filling out a workers comp or for 'whistleblowing'
- Public Policy Exception- you can't be fired for being told to break a law or not do something legal if it is a PUBLIC policy for the general public, courts dont like this one
- Good Will Cause- an unspoken agreement between employe and amployer that you will only be fired for good cause, goes off time worked there and rewards
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Term
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Definition
Deals with child labor, under 14 can't work and regulates amount that 14-18 can work
also regulates minimum wage, and if you work 40+ hrs a week you are entitled to time and a half, which doesn't apply to child actors, executive employees, doctors, agricultural workers, who are all exempt |
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Term
| ERISA (Employee Retirement Income Securities Act of 1974) |
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Definition
| Reguates employers retirement plans. Employers are not required to have one but if they do ERISA is in charge or policing it. |
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Term
| COBRA (Consolidated Omnibus Budget Reconciliation Act of 1985) |
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Definition
| If you are fired you can stay on your employers insurance plan for up to 18 months after termination but it is very expensive |
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Term
| Family and Medical Leave Act of 1993 |
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Definition
| If you work for an employer for 12 months then you can get up to 12 wks unpaid leave in the case of a family or medical emergency |
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Term
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Definition
| Offered in a bunch of states, you can only get it if you were fired for a good reason. |
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Term
| OSHA (Occupational Safety and Health Act of 1970) |
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Definition
Employers have to keep the workplace safe from recognizable hazards.
Manage this on a federal level.
Employers can be cited, fined or face criminal charges if they break this. |
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Term
| Workers Compensation Statutes |
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Definition
| If the employee is hurt on the job then they are entitled to lost pay and medical bills. They cannot sue employer, unless the act was intentional and it doesn't count for agricultural workers or independent contractors. |
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Term
| Emplyment Alcohol and Drug Testing |
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Definition
| Employers can test you at any time but there are restictions on how often and what tests. |
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Term
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Definition
| An emplyer cannot make you submit to medical testing under the ADA. |
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Term
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Definition
| An employee is not entitled to privacy in the workplace except in the bathroom. Employers can go through your emial, internet history, etc. |
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Term
Wagner Act of 1935
3 Rights |
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Definition
| The act gives employees three rights: the right to organize, collectively bargain, and strike |
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Term
Wagner Act of 1935
Forbids |
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Definition
| Employer from conducting unfair practices: discriminating against unions, forcing people to join a union, refusing to bargain with representatives of a union, retaliating against people who file charges under the NLRB |
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Term
Wagner Act of 1935
Establishes |
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Definition
| The National Labor Relations Board |
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Term
| NLRB (National Labor Relations Board) |
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Definition
| Handles complaints about employers. It does not apply to federal or state or local gov. employees, independent contractors, or employee supervisors |
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Term
| The Taft Hartley Act of 1947 |
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Definition
| Regulates Unions: They cannot: refuse to bargain with the emplyer, do a secondary boycott, discourage joining another union, do certain types of picketing, make an employer engage in featherbedding, makes it illegal for employers to mandate union membership |
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Term
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Definition
If 30% of the employees sign authorization cards then they can ask the NLRB for representative election
If you are part of a union you cannot ask employer for a raise, you can only do it as a collective |
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Term
| Job Actions, Strikes and Lockouts |
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Definition
| Only happen if the union and the employer cannot reach an agreement, or one side fails to uphold their side of the bargain. They are steps that the employer and employees can take to make the other side do something |
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Term
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Definition
| a union sponsored activity where they do something to put pressure on the employer, i.e. refuse to work overtime |
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Term
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Definition
| You can only do this for an economic reason. An employer can hire replacements and is not required to rehire after the strike |
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Term
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Definition
| An emplyer action that puts pressure on the union members |
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Term
| Title 7 of the Civil Rights Act of 1964 |
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Definition
| It discourages discrimination against employees or job applicants who are a part of a protected class, which is everyone but middle aged white men |
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Term
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Definition
| Applies to employers engaged in interstate commerce with 15+ employees |
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Term
Title 7 Procedure
EEOC (Equal Employment Opportunity Commission) |
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Definition
| The EEOC administers Title 7, and they investigate allegations. A person needs to send in a complaint to the EEOC to investigate. They do so and if it stands they ask employer for a settlement, if they refuse they issue a right to sue letter to employee and then they can sue the employer. |
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Term
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Definition
Equitable Relief: the employer has to make it easier for people in a protected goup to be hired, injunction or order
Money Damages: lost wages for up to 2 years, attorney's fees, front pay
Compensatory Damages: pain and suffering
punitive: an employer with 100 employees can pay up to $5,000, the more employees the higher the pay amount |
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Term
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Definition
| Intentional Discriminations |
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Term
Steps to Sue for Disparate Treatment
Step 1 |
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Definition
| Step 1: the plaintiff must show that they are part of a protected group, they had adequate qualifications, they were rejected, and that the position they applied for is still open or went to someone else |
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Term
Steps to Sue for Disparate Treatment
Step 2 |
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Definition
| Step 2: Switch to defendent who must show that they had a good reason and that they didn't hire because the person was missing a qualification or someone with better qualifications came along. |
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Term
Steps to Sue for Disparate Treatment
Step 3 |
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Definition
| Step 3: Switch back to plaintiff who has to show that the defendents reason was a pretext to cover up discrimination. |
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Term
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Definition
| Unintentional Discrimination (Adverse Impact)- an employment method has an adverse discriminatory effect on a protected group. They look neutral but are still illegal. |
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Term
Steps to Sue for Disparate Impact
Prima Facie Case Step 1 |
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Definition
| Step 1: The complaining party has to show a discriminatory effect of a hiring process. The 4/5th rule. If people in protected group are hired less than 25% people in an unprotected class. |
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Term
Steps to Sue Disparate Impact
Prima Facie Case Step 2 |
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Definition
| Step 2: It switches to employer and they have to prove that the employment practice is job related and necessary. Like being able to lift heavy things all day. |
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Term
Steps to Sue Disparate Impact
Prima Facie Case Step 3 |
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Definition
| Step 3: An employee can still win if they show that the requirement is a pretext for discrimination. Or if there is another requirement that is equivalent and could be substituted for the offending one. |
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Term
| Constructive Discharge Title 7 |
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Definition
Where an employer creates a work environment so uncomfortable any reasonable employe would quit. Typically the conditions have to be extreme.
Webb v. Florida 2001.
Aryain v. Wal-Mart 2008 (employee lost) |
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Term
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Definition
| Where an employer penalizes an employee for reporting illegal practice, Title 7 will protect those employees. It could backfire though if an employee knows they are gonna get a bad review they could complain to HR and the employer would be faced with giving a bad review and facing charges or giving a good review and the employee getting away with it. |
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Term
| EPA (Equal Pay Act of 1963) |
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Definition
| gender discrimination- forbids sexual discrimination concerning pay, an employer violates it if a woman get lower pay for equal work |
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Term
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Definition
| Title 7 prohibits an employer from discriminating based on someone's beliefs, practices, observences. They need to make accomodations for these unless they cause an undue hardship. |
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Term
| ADEA (Age Discrimination in Employment Act of 1967) |
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Definition
| Protects against discrimination against people 40+. It covers employers with 20 or more employees that work in interstate commerce. Before a suit can be done an employee must first lodge a complaint with the EEOC. |
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Term
| Disabilities Discrimination |
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Definition
ADA (Americans with Disabilities Act of 1990): which a pplies to employers with 15+ employees and those engaged in interstate commerce.
Compensatory and punitive damages available. |
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Term
| ADA (Americans with Disabilities Act of 1990) |
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Definition
Under this a person with disability is someone with a physical or mental impairment that prevents them from living a normal life, someone who had that impairment in the past and someone who acts like they have one now.
Does not cover homosexuality, people who do drugs, drink alcohol, or culpulsively gamble
Also requires employer reasonable accomodate employee unless it causes them an undue hardship |
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Term
|
Definition
2 types:
Quid Pro Quo
Hostile Environment |
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Term
| Quid Pro Quo Sexual Harassment |
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Definition
| A benefit related to employment is offered in exchange for sexual favors and if turned down someone suffers a job detriment. |
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Term
| Hostile Environment Sexual Harassment |
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Definition
a question of fact, when the workplace is so permeated with ridicule, intimidation and insult that it alters the conditions of the victim’s employment and creates an abusive working environment. |
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Term
| The 4 Elements of a Contract |
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Definition
- agreement
- consideration
- legal capacity
- legal purpose consistent with law and sound public policy
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Term
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Definition
| promise for a promise. Ex. Mary promises to sell her truck to Dan for 5,000, and Dan promises to pay 5,000 for the truck. |
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Term
|
Definition
| promise for performance. Ex. Mary tells Dan, I promise to pay you 4,000 is you paint my house. He does so she pays him. The second you start the job you have agreed to the contract |
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Term
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Definition
| contract that is not one in the eyes of the law. Ex. A contract entered into by someone incompetent by a court of law |
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Term
|
Definition
| in which one or more parties have the power to end the contract. Contracts induced by fraud or under duress. Or a contract entered by a minor with an adult can be disaffirmed |
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Term
|
Definition
· contract that has been fully performed |
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Term
|
Definition
contract that has yet to be performed |
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Term
|
Definition
| where the parties have manifested an agreement by oral, or written language or both |
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Term
|
Definition
o inferred from the conduct of the parties ex. You go into a restaurant and order food, when you order that meal you are making a promise to pay for it |
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Term
| Damages for Breach of Contract |
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Definition
Nominal Damages
Compensatory Damages
Consequential Damages
Punitive Damages |
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Term
| Nominal Damages in Contracts |
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Definition
| where the party which suffers from the breach suffers no compensable loss, the nonbreaching party may still recover a small, nominal amount to recognize the breach ex. Bobby contracts to buy 10,000 pnds. Of peanuts at 50 cents a pnd from Sammy. Sammy doesn’t deliver and Bobby gets the peanuts from Mark for 40 cents a pnd. Although he suffered no loss he is still entitled to damages |
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Term
| Compensatory Damages in Contracts |
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Definition
| damages to make the non-breaching party whole addressing the expectation of interest and providing the benefit of the bargain along with costs and incidentals. They include out-of-pocket losses as well as money required to give the party the benefit of the bargain |
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Term
| Consequential Damages in Contracts |
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Definition
| damages awarded for unique but forseeable losses flowing from the breach of contract and is based on evidence tha the breaching party had that a special loss would occur if that party breached. Hadley v. Baxendale (1854 English Case)- the mill |
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Term
| Punitive Damages in Contracts |
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Definition
| damages assessed by a jury as punishment. Occurs mostly in tort cases, although they have been used in contract cases. |
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Term
|
Definition
| a fixed sum agreed un by the parties of the contract to be paid as ascertained damages by the party who breaches the contract. FSU v. WVU |
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Term
|
Definition
| Specific Performance, Recission, Restitution |
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Term
|
Definition
| court requires the breaching party to perform the contract. This is available in cases involving relationships and personal services. However, a court can require an injunction to prevent the individual who breaches a personal services contract from performing elsewhere. |
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Term
|
Definition
| court action which enables a party to avoid a contract. Ex. Situations where a party enters into a contract induced by fraud or mistake |
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Term
|
Definition
| court action which orders a party to return any benefit received under a contract which they are not legally entitled to, prevents one party from being unjustly enriched |
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Term
|
Definition
| a conditional promise made by the offeror to the offeree |
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Term
| Offer can Consist of Offeree |
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Definition
Doing something (performing an act)
Refraining from doing something (forbearance)
Promising to do something or promising to refrain from something |
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Term
| Requirements for an offer |
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Definition
| Present Intention to Contract, Definitness, Proper Party |
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Term
| Present Intention to Contract |
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Definition
| Rule: an offer must include the words of Present Commitment or undertaking. Offers must be distinguished from preliminary negotiations and future intentions. Es. A tells B, “I am eager to sell my house. I would consider 200,000 for it.” A has not yet made an offer. But if A says, “I will sell my house for 200,000” then that is an offer. |
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Term
|
Definition
| are generally NOT considered offers unless immediate acceptance is brought up. “I quote you this for immediate acceptance” |
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Term
|
Definition
| Rule: courts require an offer to be reasonably definite. If terms are vague or impossible to reassure with some precision or a major term is absent, no contract results. A says, “I’ll sell you any quantity of blah for blah blah.” “I’ll buy them” not a contract cause the guy didn’t say how many he was gonna buy |
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Term
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Definition
| Rule: an offer must sufficiently identify the offeree or the class from whom the offeree may emerge. Ads aren’t offers. Leonard v. Pepsico, the Harrier Jet |
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Term
| Ways to Terminate an Offer |
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Definition
| Lapse of Time, Operation of Lw, Rejection By Offeree, Revocation by the Offeror, counteroffer |
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Term
|
Definition
| Rule: if an offer does not stipulate the period during which it is to continue, it remains open for a reasonable time. Time can also be measured from when the party receives the offer |
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Term
|
Definition
| Can be caused by the death or insanity of either party or the destruction of the subject matter of the offer or illegality that occurs after the offer is made |
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Term
|
Definition
| An offeree may decide to reject the offer, which terminates it |
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Term
|
Definition
| An offeror may revoke the offer at any time before the offeree accepts, but it isn’t effective until received by the offeree, they can do it directly or through a third party |
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Term
|
Definition
An offeree may reject an offer and propose new terms, thus making a new offer
Rule: an acceptance by an offeree must conform exactly to the terms of the offer, the mirror image rule which says that any deviation from the terms and acceptance is held to be a counteroffer
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|
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Term
|
Definition
an indication by the offeree to his/her willingness to be bound by the terms of an offer. May take the form of an act (unilateral offer), a return promise said to the offeror (bilateral offer), or the signing and delivery of a written instrument
Rule: generally an offeree cannot assign an offer to a 3rd party |
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Term
| Accepting a Bilateral Offer |
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Definition
| the rule is that a bilateral contract is accepted by the offeree by making a promise in response to the promise of the offeror |
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Term
|
Definition
| rule is that mere silence of the offeree is not acceptance |
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Term
| Communication of Acceptance |
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Definition
| an offeror is master of the offer, thus they control the manner and mode or medium of acceptance. Follow the rules to the letter. |
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Term
| When Does Acceptance Take Effect? |
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Definition
| upon receipt by the offeror or dispatch by the offeree |
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Term
| Acceptance of a Unilateral Offer |
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Definition
| rule is that substantial performance of the act requested constitutes an acceptance of a unilateral offer. Remember that once performance is underway by the offeree, the offeror cannot revoke the offer. |
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Term
|
Definition
| Rule- (under 18) generally have the right to disaffirm contracts and thus are voidable at the minor’s option. Minors can also generally avoid both executed and executor contracts for a reasonable period of time after majority. Some states altered this to not include life insurance and contracts with colleges and universities. |
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Term
| obligation of a minor to disaffirm |
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Definition
| majority rule- minors must return ‘remaining property’ if any as a condition of disaffirming a contract, minority rule- contract can be disaffirmed only if ALL property is returned |
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Term
|
Definition
| Rule: minors are liable for the reasonable value of necessaries, which include ‘whatever is needed for a minor’s subsistence as measured by his/her age, station in life, and all of their surrounding circumstances |
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Term
|
Definition
| Rule: if a minor sells goods to an adult, the adult only obtains a voidable title to the goods. Minors can take it back |
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Term
|
Definition
| gives a party the power of avoidance only if they are so intoxicated that they cannot understand the nature of the transaction and the other party has a reason to know that this is the case. Contracts are voidable, but may be ratified when the intoxicated person regains capacity. Note: slight intoxication will not destroy ones contractual capacity! |
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Term
| Doctrine of Misrepresentation: Types |
|
Definition
fraudulent, negligent, innocent
all the types may allow the victim to rescind a contract |
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Term
| Fraudulent Misrepresentation |
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Definition
| intentional misrepresentation. Tort damages, and punitive damages are allowed |
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Term
| Negligent Misrepresentation |
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Definition
| misrepresentation based on a lack of due care. Only contract damages are allowed. |
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Term
| Innocent Misrepresentation |
|
Definition
misrepresentation based on an honest error
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Term
| Doctrine of Misrepresentation: Elements |
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Definition
| Scienter, False Representation or the Concealment of a Material Fact, Justifiable reliance on the false statement or concealment, damages |
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Term
|
Definition
intention to mislead, knowledge of the falsity, or statements made with such utter recklessness and disregard for the truth that knowledge is inferred
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Term
| False Representation or the Concealment of a Material Fact |
|
Definition
| an actual or implied misrepresentation of a past or existing fact must have been committed |
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Term
| Justifiable Reliance on the False Statement or Concealment |
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Definition
| the party to whom the misrepresentation is made must reasonably believe it to be true and must act on it, to his/her detriment |
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Term
| Misrepresentation Damages |
|
Definition
| as a consequence of reliance |
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Term
|
Definition
| must be one of fact rather than opinion. Ex. If a new car dealer tells a potential customer, “This is a great little car,” buyer probably can’t sue on a misrepresentation theory because this is a statement of opinion. Ex2. If the car dealer says, “this car is mechanically perfect,” then a statement of fact has been made |
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Term
| Exceptions to Misrepresentation |
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Definition
| if a fiduciary relationship exists, then an opinion can constitute a misrepresentation. Ex. A doctor is considered an expert so their opinion counts, like other experts and professionals. |
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Term
|
Definition
| the general rule is that silence in the absence of a duty does not constitute fraud. The law of contracts traditionally has followed the rule of emptor (let the buyer beware) |
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Term
| Silence as FrauD? Exceptions |
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Definition
| half-truths, positive concealment, failure to corect past statement, fiduciary relationship |
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Term
|
Definition
| if part of the truth is told, but another part is not, so as to create an overall misleading impression, this may constitute misrepresentation |
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Term
|
Definition
| if the party has taken action to conceal the truth this will be actionable even though it is not verbal, ex. Covering up termite issue |
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Term
| Failure to Correct Past Statement |
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Definition
| if the party knows that disclosure of a fact is needed to prevent some previous assertion from being misleading, and doesn’t disclose it, this will be actionable. Ex. Didn’t know about termites, said house was fine, found out about termites but didn’t tell the person |
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Term
|
Definition
| if the parties have some kind of fiduciary relationship, so that one believes the other is looking out for his/her interests, there will be a duty to disclose material facts |
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Term
|
Definition
| may be grounds for a rescission of a contract. This is where one person overpowers the will of another by use of moral, social or domestic force. This frequently arises in cases of the elderly. Heasley v. Evans 1958- invalidation of a will |
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Term
|
Definition
| can also constitute a ground for rescission of a contract, General rule- duress consists of any wrongful act or threat which overcomes the free will of a party |
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Term
| Duress by Physical Compulsion |
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Definition
| being held at gunpoint. These contracts are VOID |
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Term
| Duress by Improper Threats |
|
Definition
| the use of improper threats or acts, including economic or social coercion, to compel a person to enter into a contract. This type of contract is VOIDABLE at the coerced party’s option. Ex. Being threatened with termination if you don’t complete a task by a certain deadline |
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Term
| Status of Illegal contracts |
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Definition
| Rules: courts do not allow litigation involving an illegal contract. If an illegal contract is executor, neither party may enforce performance by the other. A party to an illegal contract cannot recover damages for breach of such a contract. Also, if one party performed they cannot usually recover. |
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Term
| Types of Illegal Contracts |
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Definition
Those that violate a statute
Those that are contrary to public policy |
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Term
| Exceptions to Illegal Contract Rules |
|
Definition
relief (restitution) can be granted to a party in an illegal contract in 3 situations:
If a person falls into the category for those whose protection the contract was made illegal, when it is induced by fraud or duress, Doctrine of Locus Poenitentic |
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Term
| Person In The protected Category |
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Definition
| a person falls into the category for those whose protection the contract was made illegal. Ex. Fe. And state statutes require that a corp. follow certain procedures before securities may be offered for sale to the public. If a seller violates the law by failing to comply wth the legal requirements for sale a purchaser is still allowed to obtain a refund of the purchase price if they want to |
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Term
| Doctrine of Locus Poenitentic |
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Definition
| rule: a person who repents before actually having performed any illegal part of the contract may rescind it and obtain restitution of their part performance. Ex. Betting on the game but taking money back before the game |
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Term
| Violation of License Requirements |
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Definition
| General rule: personal service agreements may be unenforceable if the party performing the service isn’t legally entitled to do so. Ex. Doctors, etc. have to be licensed but sometimes people say they are but they are not. Ex. 2 Marzen giving advice in a state he isn’t licensed in and client doesn’t have to pay |
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Term
| Violations of Usury Statutes |
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Definition
| Rule: contracts can also be illegal if they violate a state usury statute. A usury statute limits the amount of interest that may be charged on borrowed money. These statutes protect individuals and consumers. They could charge a service or handling fee |
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Term
| Sherman Antitrust Act of 1890 |
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Definition
| Rule: prohibits contracts (express or implied) and conspiracies in restraint of trade (contracts that impede free completion) |
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Term
| Sherman Antitrust Act: Sanctions |
|
Definition
- Violations are a federal felony punishable by fine or imprisonment or both
- The act authorizes injunctions to prevent and restrain violations or continued violations of its provisions
- Those who have been injured by the violation of the act may collect triple damages plus court costs and attorneys fees
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|
Term
| Activities that Violate Sherman Antitrust Act |
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Definition
| price fixing, exclusive agreements, tying products to one another |
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Term
|
Definition
| agreement granting exclusive rights to sell a product or to sell in exclusive territories. N agreement among competitors to divide territories is per se illegal |
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|
Term
| Tying Products to One Another |
|
Definition
| agreements which tie one product to another where the effect is to lessen competition. Ex. You can only buy this if you also buy this. |
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|
Term
| Agreements Not to Compete |
|
Definition
| An agreement where one person agrees not to compete with another, courts typically scrutinize these agreements heavily, they are enforced if they are reasonably necessary for the protection of a purchaser, the remaining members of a business, or an employer, provided the covenant… They must be part of another contract to be enforceable! |
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Term
| Rules for Agreement Not to Compete Covenant |
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Definition
| needs to be: reasonable in point of time, is reasonable in the area of restraint, is necessary to protect goodwill, does not violate the public interest |
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|
Term
|
Definition
| a standardized contract entirely prepared by one party. Ex. Insurance contracts, leases, and employment contracts |
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|
Term
| Doctrine of Unconscionability |
|
Definition
| allows a judge to invalidate a contract or provisions that are oppressive, overreaching, or shocking to the conscience. Important- Unconscionability is a question of law which is decided by a judge!!!! |
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|
Term
| Types of Unconscionability |
|
Definition
|
|
Term
| Procedural Unconscionability |
|
Definition
| where the court finds there is an unequal bargaining power between the parties, and where the process of making the contract Is oppressive |
|
|
Term
| Substantive Uncnscionability |
|
Definition
| where the court scrutinizes the actual terms of the contract |
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|
Term
|
Definition
| A contract provision whereby one pf the parties attempts to relieve itself of tort liability. These clauses have increasingly been upheld by the courts, particularly with fitness centers |
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|
Term
| Tickets Disclaiming Liability |
|
Definition
| Rule: printed matter on a ticket is generally NOT held as part of an offer that is accepted by the holder of the ticket. Tickets are a means of identifying the article to be returned. |
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