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B-Law Test #4 #Final
Chapters 24 + 25
Terms in this set (92)
What is employment at will?
A common law doctrine under which either party may terminate an employment relationship at any time for any reason.
With employment at will can employers fire workers for any reason or no reason?
Yes. Unless doing so violates an employee's statutory or contractual rights.
- The majority of U.S. workers have "employment at will" status.
Exceptions to employment at will doctrines are based on: (3 things)
- contract theory
- tort theory
- public policy
(these are all rooted in the notion of wrongful discharge)
An exception based on contract theory is________
Implied Employment Contract
What is an implied employment contract?
A contract that is inferred or implied between employer and employee even though no written employment contract exists.
What could an implied employment contract be based on?
- employment manual, bulletin board, policies communicated to employees, oral promises by employer
- employee's reasonable expectations are the key to whether an implied employment contract is said to have been formed
What is a tort?
A wrongful act or an infringement of a right (other than under contract) leading to civil legal liability.
What are the exceptions based on tort theory? (3)
- Intentional infliction of emotional distress
What qualifies as an intentional infliction of emotional distress?
An extreme and outrageous act, intentionally committed, that results in severe emotional distress to another
What is defamation?
Anything published or publicly spoken that causes injury to another's good name, reputation, or character.
Fraud involves intentional deceit for personal gain based on: (5)
1. Misrepresentation of facts or conditions with knowledge that they are false or with reckless disregard for the truth
2. Intent to induce another to rely on the misrepresentation
3. Justifiable reliance by the deceived party
4. Damage suffered as a result of the reliance
5. Causal connection between the misrepresentation and the harm
Exception Based on Public Policy
most common exception to employment at will doctrine is that worker was terminated for reasons that violate a clearly stated fundamental public policy of the jurisdiction
What is whistleblowing?
An employee's disclosure to government, the press, or upper-management authorities that the employer is engaged in unsafe or illegal activities.
Can you be legally fired for reporting illegal activity (whistleblowing)?
What is wrongful discharge?
An employer's termination of an employee in violation of the law or an employment contract
Examples of Wrongful Discharge:
- fired due to discrimination
- employee subjected to sexual harassment
- employee fired in retaliation
- an employee was discharged for refusing to break a law or opposing illegal practices in company
Currently the federal minimum wage is $7.25 per hour. Zeke lives in Colorado, where the state minimum wage is $11.10 per hour. Zeke was just hired by The Sink here in Boulder. He hasn't yet asked what he is going to get paid. What should he expect to get paid?
Fair Labor Standards Act (FLSA)
Federal law that establishes a minimum wage and requirements for overtime pay and child labor
True or False: An employee must be paid the state's minimum wage if it is higher than federal minimum wage
True or False: Under FLSA hourly wage plus tips must equal minimum wage
Employees who work more than 40 hours/week normally must be paid 1.5 times their regular pay for all hours worked over 40 hours
FLSA Overtime (Exemptions)
Certain employees (executive, administrative, and professional employees), outside salespersons, and computer programmers are exempt from overtime requirement
Would a pharmaceutical sales representative who travels to 10 physician offices per day to promote the benefits of a certain drug be exempt from overtime requirements of FLSA as administrative employee?
Yes. Because they are unsupervised, control their own schedule, and receive a salary not hourly wages
Which federal statute is designed to protect employees from an unsafe work environment?
Family and Medical Leave Act (FMLA)
Federal statute enacted in 1993 to allow employees to take time off from work for family or medical reasons
What is Family Leave?
To care for a newborn baby or a child recently placed for adoption or foster care
What is Medical Leave?
When employee or employee's spouse, child or parent has a "serious health condition" requiring care
Coverage and Applicability of the FLMA:
- requires employers who have 50 or more employees to provide them with 12 weeks of unpaid family or medical leave during any 12-month period
- employees must have worked for the employer for at least 1 year
- employer must continue medical coverage while employee is out
- upon return, most employees must be restored to their original job position or to a comparable position (same pay and benefits)
Occupational Safety and Health Administration (OSHA)
Federal Statute enacted in 1970 which is the primary legislation protecting employees' health and safety.
- requires employers to keep workplaces safe
- prohibits employers from firing or discriminating against any employee who refuses to work when he/she believes a workplace is unsafe
- establishes industry-specific safety standards
- requires employers to keep illness and injury records
- OSHA compliance officers may enter and inspect facilities of OSHA-covered employers
- Employees may file complaints of violations
What are workers' compensation laws?
They are state statutes that establish an administrative procedure for compensating workers injured on the job
Requirements for receiving workers compensation laws: (2)
1. Existence of an employment relationship
2. Accidental injury that occurred on the job or in the course of employment, regardless of fault.
Do injuries during commute count for workers compensation?
Injured employee must do these things to receive workers compensation:
- notify employer (within 30 days)
- file workers compensation claim (60 days-2 years from date injury is noticed, not when it occurred)
- relinquishes right to sue employer (unless unintentional harm)
What is income security?
Federal and state governments participate in insurance programs designed to protect employees and their families by covering the financial impact of:
What is the Social Security Act?
Federal statute which provides for old-age (retirement), survivors' and disability insurance
Federal Insurance Contributions Act (FICA)
A federal statute which requires employers and employees to contribute (or pay in) to help pay for benefits that will partially make up for the employee's loss of income on retirement
How does FICA work?
- basis for contributions is employee's annual wage
- employer withholds the employee's FICA: 6% contribution from the employee's wages and 6% matching contribution from employer
- retired workers are then eligible to receive monthly payments from Social Security Administration, which administers Social Security Act
- Social security benefits fixed by statute but increase with cost of living
What is Medicare?
Federal government health insurance program that is administered by the Social Security Administration for people 65 years of age and older and some under 65 years who are disabled
Is there a cap on amount of wages subject to the Medicare tax?
No. Unlike social security, 1.45% of all wages by employer plus 1.45$ of wages by employee
How do self-employed persons pay medicare + social security?
They pay both the employer and the employee portions of the social security and medicare taxes?
What is the Federal Unemployment Tax Act (FUTA):
Federal statute enacted in 1974 which regulates employee retirement plans
Who pays into FUTA?
What is required to be eligible for unemployment benefits?
- must be willing and able to work
- must be actively seeking employment
Workers who have been fired for misconduct or who have voluntarily left their jobs are NOT eligible
Consolidated Omnibus Budget Reconciliation Act (COBRA)
Federal Statute enacted in 1985 which requires employers to continue health are coverage for workers after their jobs have been terminated (when they are then no longer eligible for their employers' group health insurance plans)
- requires employee to pay the premiums under COBRA
- Only workers fired for gross misconduct are excluded from protection under COBRA
Health Insurance Portability and Accountability Act (HIPAA)
Federal statute which regulates employer sponsored group health plans
- Restricts the manner in which covered employees collect, use, and disclose the health information of employees and their families
- Employers must ensure that employees' health information is not disclosed to unauthorized parties
- Employer can be subject to criminal prosecution for certain types of HIPAA violations
National Labor Relations Act (NLRA)
Federal statue which established the rights of employees to engage in collective bargaining and to strike.
NLRA prevents employers from:
- interfering with he efforts to organize
- dominating a labor organization
- discriminating in the hiring or awarding of tenure to employees based on their union affiliation
- discriminating against employees who file charges under NLRA
- refusing to bargain collectively with the duly appointed representative of the employees
What is intellectual property?
Property resulting from intellectual, creative processes.
- information contained in books and computer files
What is personal property?
property that is movable
- cars, computers, clothes, and artwork etc..
What is real property (also real estate)?
Property that is immovable, including:
- land and the buildings, plants, and tree that are on it
- subsurface and airspace rights
- personal property that has become permanently attached
What counts as part of the land in Real Property?
- the literal land
- natural or artificial structures attached to it
- all the waters contain on or under the surface
- much of the airspace above it
What are airspace rights?
Flights over privately owned land normally do not violate property rights unless the flights are so low and frequent that they directly interfere with the owner's enjoyment and use of the land.
What are subsurface real property rights?
In many states, land ownership may be separated so that different people may own the surface vs. the subsurface of a piece of land
- subsurface rights can be valuable (minerals, oil, natural gas)
- each owner can pass title to what they own without consent of other owner
True or False: Statutory law or common law may make one party's interest subservient to the other party's interest
What are fixtures on real property?
certain personal property which becomes so closely associated with the real property to which it is attached that the law views it as real property
Examples of fixtures on real property:
- attached to the real property in a permanent way
- by means of cement, plaster, bolts, nails, roots, or screws
- can be physically attached to the land, to another fixture, or even without any physical attachment to land (statue)
Are fixtures included in a sale of land if the sales contract does not provide otherwise?
Which of the following ownership rights is the greatest aggregation of rights, privilege, and power?
A. Life estate
B. Leasehold estate
C. Fee simple
D. Nonpossessory interest
C. Fee simple
What is a fee simple absolute?
an ownership interest in land in which the owner has the greatest aggregation of rights, privileges, and power possible
In a few simple the owner has rights of:
exclusive possession and use of the property:
- zoning, noise, and environmental laws
- can give the property away or transfer it
What is Nuisance?
use of a property in a way that interferes with others' right to use or enjoy their own property
What happens when the owner of a fee simple dies?
The property passes to their heirs
- ownership interest is potentially infinite in duration and is assigned forever to a person and his/her heirs without limitation or condition
What is a life estate?
Ownership interest in land that lasts only for the duration of the life of some specified individual.
- created by a conveyance
What is conveyance?
The transfer of title to real property from one person to another by deed or other document
Can a life tenant commit any waste?
No because he/she has a duty to maintain the value of the property during his/her tenancy
Does a life tenant's ownership pass to their heirs when they die?
No, they only have right to use the land until they die
Hugh Hefner and the Playboy Mansion is an example of
What is a leasehold estate?
Created when a real property owner or lessor (landlord) agrees to convey the right to possess and use the property to a lessee (tenant) for a certain period of time
- the real property owner maintains the right to enter the premises to ensure that the tenant is not committing waste
- Key: right to possess the land is temporary
What is a nonpossessory interest?
Interest in land involving the right to use the land but not the right to possess it or take from it
What is easement?
A non possessory right, established by express or implied agreement, to make limited use of another's property without removing anything from the property
The right to walk or drive across another's property is an example of
What is a license (nonpossessory interests)?
The revocable right to enter onto another person's land without obtaining any permanent interest in land
- personal privilege that arises from the consent of the owner of the land and can be revoked by the owner
Hunters who access land to hunt is an example of
Ownership interests in real property can be transferred by: (3 things)
- by sale
as specified in a real estate sales contract and in deeds
- by will or inheritance
- by eminent domain
A real estate sales contract includes:
purchase price, type of deed the buyer will receive, condition of the premises, and any items that will be included
The purchaser of a real estate sales contract usually obtains a:
What is implied warranty of habitability?
Guaranty by the seller of a new house that the house is fit for human habitation
- house is in reasonable working order and is of reasonably sound condition
- also a guaranty by a landlord that rented residential premises are habitable
What happens if a seller doesn't disclose any known defect that materially affects the value of the property?
The buyer has the right to rescind
What is a deed?
A written instrument (document) which conveys real property from one person to another person
- unlike a contract, a deed does not have to be supported by legally sufficient consideration
To be valid, a deed must include the following:
- name of the buyer (grantee) and the seller (grantor)
- words indicating an intent to convey the property (ex: "I hereby bargain, sell, grant, or give")
- a legally sufficient description of the land
- signature of grantor (and usually that of grantor's spouse)
- delivery of the deed
Which of the following best describes a deed?
A. Formal contract because it must be in writing to be valid
B. Informal contract
C. A written document that is not a contract because it lacks consideration
D. Nonpossessory interest
C. A written document that is not a contract because it lacks consideration
What are recording statutes?
Statutes that allow deeds, mortgages, and other real property transactions to be recorded so as to provide notice to future purchasers or creditors of an existing claim on the property
Where are deeds recorded?
In the count where the property is located
What is a will or inheritance?
Property that is transferred upon an owner's death that is passed either by will or by state inheritance laws
What happens if an owner dies with a will?
Land passes in accordance with terms of the will
What happens if owner dies without a will?
Land passes according to state inheritance statutes
What is eminent domain?
The power of a government to take land from private citizens for public use as long as the government provides such citizens with just compensation
Ex: new or expanded highways
Landlord-Tenant Relationships: Possession:
- landlord must give tenant possession of the property
- neither landlord nor anyone else can disturb tenant's enjoyment of the property
Landlord-Tenant Relationship: Use and maintenance of the premises:
- Tenant can generally use the leased property in any way that is legal and does not injure landlord's property
- Tenant is responsible for damages, but not wear and tear
What is assignment of lease?
Transfer of tenant entire interest in the leased property to a third party
assignment typically does not release the original tenant from the obligation to pay rent should the assignee default
What is a sublease?
The transfer of all or part of the leased premises by tenant to a third party for a period of time shorter than the lease term
- landlord's consent is typically required
- sublease typically does not release the original tenant from the obligation to pay rent should the sublease default
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