BUSA 2106 Final Exam Notes
BUSA 2106 Final Exam Notes BUSA 2106
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This 6 page Study Guide was uploaded by Varsha Mandiga on Tuesday April 26, 2016. The Study Guide belongs to BUSA 2106 at Georgia State University taught by Grelecki in Spring 2016. Since its upload, it has received 144 views.
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Date Created: 04/26/16
Agent: Employee/Employer, Entertainment Agent/Talent, Real Estate Agent/Buyer or Seller, Insurance Agent/Insured, Guardian/Ward, Exe cutor/Decedent Agency: Relationship created when one person (PRINCIPAL) shows the intent to have another person (AGENT) act on his/her behalf Look to the acts of the PRINCIPAL (party to be bound by actions of another) when trying to determine whether agency relations hip exists Creation of Agency (Typically, by Act of the Parties): Agent & Principal Agree (actual authority), Principal acts like someone is their agent, even though there is no agreement (apparent authority), Principal agrees to be bound by previous acts of another, even though there was no authority for that person to act ( ratification) Duties & Remedies Duties of Agent to Principal • Duty of Reasonable Care/Duties under Contract • Duty of Loyalty • Fiduciary duty as one of undivided loyalty, must disclose interests adverse to those of principal , and Can breach when acting for two adverse principals • Duty of Obedience • Must obey all reasonable directions and agent liable for losses due to failure to obey • Duty to Notify • Must notify principal of matters that come to agent’s knowledge and affecting the subject of the agency • Knowledge of agent imputed to principal (unless agent acts in own interest, adverse to principal or attempting to commit fraud) Remedies of Principal (for agent’s breach of duty) • Action for Damages • Breach of Contract and sue for Torts (Fraud, Conversion, Negligence, etc.) • Action for Secret Profits • Where agent breaches fiduciary duty and profits, principal may recover profits/property held and An employed as a clerk at P’s store. All goods are marked with a fixed price. A sells a $200 radio to customer for $250, pocketing $50. A must give P the $50, even th ough P not injured • Withhold Compensation • In circumstances of intentional tort or intentional breach of fiduciary duty, principal may refuse to pay agent, in addition to other remedies • An employed on commission basis by P to act as agent for sale of P’s lan d. A breaches fiduciary duty to P by accepting additional commission from buyer. P can withhold A’s commission • Request an Accounting Duties of Principal to Agent • Duty to Cooperate rd • Principal must cooperate and not interfere and if P hires A to sell his empty factory building on commission, P cannot lease the building to a 3 party • Duties Imposed by Contract (compensate, reimburse, etc.) Remedies of Agent • Breach of Contract • Agent’s Lien • Possessory lien (claim against any of P’s property held by A) for any money due, A purchases rare coins for P with his own funds. P does not reimburse A. If A still has the coins, A has a lien on the coins and may retain them until P reimburses A Agency Power (Agents can have actual (agreed upon) authority, either expresse d or implied) Express Actual Authority • Authority contained within the “4 corners” of agency agreement (written or oral communication from principal to agent) , extravagant language limited to actual business intent (“A to conduct all business for P”), specific language prevails over general, agent can act upon reasonable belief based on principal’s words and acts Implied Actual Authority • Implied from Express Authority • Express authority to accomplish a result implies authority to use all means reasonably ne cessary to accomplish it (“to manage . . . “) • Implied from Custom and Usage • Implied authority to act in accord with general practices • Implied by Acquiescence • Results from principal’s acceptance of, or failure to object to, series of unauthorized acts that reasonably leads agent to believe he has authority to do the same in the future (A order supplies) • Implied Because of Emergency or Necessity • With no specific instruction for emergency, agent has implied authority to take reasonable measures That “agreed upon” Actual Authority can end. Actual Authority can be terminated by: Decision of party(ies) to end it, By happening of an event (sale), By change of circumstances (property destroyed), By breach of Agent’s fiduciary duty, and By operation of law (death; dissolution). Absent “agreed upon” authority, agent can also have or gain authority based on what the principal says/does or doesn’t say/do in a given situation, causing some other person to think the agent has authority. Apparent Authority: Principal “holds out” another as possessing certain authority by affirmative action (“A is my agent”) or inaction (A, in front of P, says, “I am P’s agent,” and P says nothing), Effectively induces others to believe authority exists (reasonable reliance) . Ratification: Principal must know material facts, Principal must accept entire transaction, Principal must have capacity, and can be express or implied. Liabilities rd Agency relationships typically exist for the purpose of creating business deals (contracts) between the Pri ncipal and some 3 party, so what happens if the contract is breached? Typically, a 3 Party can only sue the Principal, not the agent, b/c the agent is acting for/as the Principal rd • But, both Agentrd and Principal can be liable to 3 party if: rd • 3 party does not know who the Principal is or 3 party does not know there even is a Principal (think agent acting for self) • Typically, only Principal can sue the 3 party, unless: rd rd • 3 party does not know who the Principal is or 3 party does not know there even is a Principal (think agent acting for self) Employment: How do we define an Employee (v. independent contractor)? Important because an employee is an agent, but an independent contractor is not. Look to the Time, Method, and Manner in which “worker” doe s the work. How much control does the “boss” have? Consider things like: Characterization by parties (What did they say?) , Understanding of the parties (What did they think?) , Distinct businesses (“worker” is separate entity), Level of supervision by “boss”, Level of specialized skill required of “worker”, Tools and facilities utilized (Who owns them?), Period of employment (definite/indefinite), and Basis of compensation (salary/lump sum). Employment At Will Employees typically presumed to be employed “at will,” so… Employers can fire employees without cause at any time (limited by anti -‐discrimination laws), Employees can quit at any time. Unless . . . An employment contract exists setting forth terms different from employment -‐at-‐will, and Employer indicates some other way that it will fire only “for cause” Employment Discrimination: What is it? Prohibited, inequitable treatment of employees (or job applicants) . Based on race, color, national origin, gender, religion, age, or disability Requirements to Claim? Employer must be subject to the specific law(s) and Plaintiff MUST be a member of a Protected Class . Protected Class is a group of persons protected by particular laws based on the group’s defining characteristics Plaintiff must have a race, color, religion, national origin, gender, age, or disability. Claims exist under: • Title VII of the Civil Rights Act of 1964 (covers race, color, national origin, religion, gender, sexual harassment) , Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA), State/Local Law equivalents (Federal laws have state and local counterparts and State/local laws may apply to more employers or broaden the categories of discrimination ( i.e., sexual orientation, marital status and political affiliation)) Equal Employment Opportunity Commission (EEOC) • Alleged victim must file initial claim (Char ge of Discrimination) with EEOC, before suing employer; AND within 180 days of alleged discriminatory conduct. • EEOC can decide not to investigate the claim • EEOC can investigate the claim and decide: There is no violation and sends a Right-‐to-‐Sue notice; OR There is a violation and attempt to settle the matter with the employer. • If the EEOC cannot settle a matter, the EEOC legal staff determines whether a lawsuit is necessary • If the EEOC does not file a lawsuit, EEOC sends the alleged victim a Right-‐to-‐Sue notice Title VII • Prohibits job discrimination on the basis of race, color, national origin, religion, or gender , prohibits job discrimination at any stage of employment (incl. application), Prohibits both intentional (disparate treatment) and unintentional (disparate impact) discrimination , Applies to employers with fifteen (15) or more employees, and The Equal Employment Opportunity Commission (EEOC) monitors compli ance with Title VII Disparate Treatment Individual (s) intentionally singled out, Can be established by direct evidence of discrimination, but very rarely see “smoking g un” discrimination or an openly discriminatory policy, and Most often proven by indirec t/circumstantial evidence, which requires a “burden shifting” analysis Disparate Treatment Burden-‐Shifting Analysis 1. Plaintiff (P) must establish prima facie case: • P is member of protected class, P applied and was qualified for the position at issue , P was rejected by employer (an adverse action), and employer continued to seek applicants and filled the position with lesser -‐qualified person not in the protected class (non -‐member treated more favorably) 2. Employer must then articulate legally defensible, non -‐discriminatory reason for the action (typically, BFOQ, discussed below) 3. P must then show that employer’s reason is “pretext” (Not true and offered to cover true intent) Disparate Impact Ø Employer has a facially-‐neutral employment policy AND Application of the policy has a discriminatory impact on an entire group, even without specific intent to discriminate. Alleged victim must prove that the policy significantly & adversely impacts a protected class . Requires statistical evidence (which employer can rebut) regarding employer’s workforce, as compared to the relevant labor force . To defend, employer must prove a manifest relationship between the employment practice and a business need (business necessity, discussed below) . Alleged victim must then prove that an alternative employment policy would accomplish the same goal without a discriminatory impact Special Considerations Ø Religion: Cannot require (or forbid) employees to participate in any religious activity . Must “reasonably accommodate” religious practices o f employees (change schedules), unless it creates undue hardship (build altar). “Religious belief” need only be sincerely held by employee Ø Gender: Cannot classify jobs as “male” or “female,” unless can prove gender is essential to job (BFOQ) , and Pregnancy Discrimination Act – cannot discriminate due to pregnancy, but do not have to provide special accommodations . Ø National Origin: No “English only” job classifications and cannot discriminate based on accents, unless job requires (call center) Constructive Discharge (What if an employee leaves job voluntarily, so there’s no overt adverse employment action? ) • If employer causes employee’s working conditions to be so intolerable that a reasonable person in employee’s position would f eel compelled to quit, that is “adverse action” • P must present: objective proof of intolerable working conditions, which employer knew or had reason to know of, and failed to correct within a reasonable time. • Employee can get loss of income and back pay, despite voluntarily departure • Can be used in connection with any kind of discrimination, but most often in sexual harassment Sexual Harassment (Hostile Work Environment) • Alleged victim is a member of a protected group (gender) and Harassment occurred because of gender • Alleged victim was subject of unwelcome harassment (if participate in the behavior, not unwelcome) • Harassment must have been sufficiently severe or pervasive (multiple occurrences), so as to alter the terms and conditions of employment • objectively offensive to a reasonable person, given the totality of circumstances and interferes with ability to do the job • Can include quid pro quo harassment and Employee still must abide by whatever reporting procedures are established, made known, and followed by employer Retaliation • Employer cannot take adverse action as a result of employee making a charge, testifying, or participating in investigation • Must show action was one that would likely have dissuaded a reasonable employee from making/supporting a charge Hot Topic: LGBT Discrimination • There is no federal law prohibiting employment discrimination against individuals based on sexual orientation or gender ident ity • Employment Non-‐Discrimination Act (ENDA) introduced in 2013 • 22 states & DC have laws prohibiting employment discriminati on based on sexual orientation • 20 states & DC have laws prohibiting employment discrimination based on sexual orientation & gender identity • EEOC has held that discrimination because individual is lesbian, gay, or bisexual is discrimination based on gender • Gender discrimination includes adverse actions taken because of individual’s failure to conform to gender stereotypes • LGB individual may experience sexual harassment ADEA • Prohibits employment discrimination, on the basis of age, against individuals forty (40) years of age or older • Does not prohibit discrimination just because employee is 40 or older, but because discrimination is based on age; however, p rotected class includes only those who are 40 or older • Look to see if employee preferred is substantially younger (5+ years), rather than simply outside the protected class ( i.e., if both employees over 40) • Can favor an older worker over a younger one, even if both workers are age 40 or older , Applies to employers with twenty (20) or more employees , and EEOC enforces ADEA, as with Title VII Alleged victim must show: • Member of a protected group (40 or older) , Qualified for the position at issue, Fired or not selected based on age discrimination , and Someone outside the protected class, or substantially younger , treated more favorably. • Alleged victim must establish “but for” causation, that age discrimination was the only reason for the adverse employment action • If defendant has a non-‐discriminatory reason for the action, unlikely to find a violation (no “burden shifting”) ADA • Requires employers to make reasonable accommodations for any qualified individual with a disability • Qualified individual is one who can perform the essential job functions • Reasonable accommodations are only required to assist the disabled e mployee in performing essential job functions • Courts give deference to employers on what are essential functions of a job (showing up is always an essential function) • Reasonable accommodations cannot cause the employer undue hardship • Reasonable accommodations may include modifying the physical workplace or just the work schedule • Applies to employers with fifteen (15) or more employees • EEOC enforces, as with Title VII and ADEA Alleged victim must show: A disability, Otherwise qualified, but no accommodation made and Excluded from employment because of disability 3 ways to establish a disability: Physical or mental impairment substantially limits one or more of the major life activities (interfere with ability to do bro ad range of jobs), A record of such impairment (impairment from prior injury) , and Being regarded as having such impairment, even if not actually disabled ( i.e., facial disfigurement). Minor or temporary impairments (sexual behavior disorders, kleptomania, pregnancy, casual illegal drug use) not p rotected Alcoholism is a disability, but employers do not have to accept behavior they would not otherwise accept ( i.e., drunkeness) Employer Defenses Bona Fide Occupational Qualification • Defense against Title VII Disparate Treatment claims and ADEA claims . Employers can treat people differently based on gender, religion, national origin, or age, if a particular gender, religion, or national origin is a BFOQ . A particular gender, religion, national origin, or age is reasonably necessary for normal operation of a business (cannot be successful in the job without that characteristic) . Cannot be based on race. Cannot be based on stereotypes or assumptions Business Necessity • Defense against Title VII Disparate Impact claims . Employer must establish that the employment policy satisfies a business need or is closely related to job performance. A business need could be to solve some a problem the business is facing ( i.e., theft). For job performance, possible criteria can include physical agility or strength requirements (related to safety or actual ability) or certain types of education or certification (related to actual requirements) . Job relatedness, as applied to hiring criteria, is relaxed with some jobs, particularly where public safety is at issue Affirmative Action • Equal opportunity policies/procedures giving special consideration to members of protected classes in order to overcome prese nt effects of past discrimination. Title VII does not require or prohibit affirmative action • Must: remedy past discrimination, not use quotas (can set goals to which to aspire) , not unnecessarily restrict rights of non-‐members of the protected class (avoid reverse discrimination), and be dropped as soon as past discrimination remedied . Baptist male applying for a pilot position (the employment is open only to Muslims) 1. Is the plaintiff charging disparate impact or disparate treatment? Disparate treatment. 2. What type of discrimination is the plaintiff is alleging, under what law? Religious discrimination under Title VII. 3. What would he have to show? He was a member of a protected class (religious affiliation of Baptist). He was qualified and applied for the job of helicopt er pilot. Although he was initially given the job, he was terminated from the job because of his religi ous affiliation. Adverse employment action based on the company not accommodate him and find him another job. 4. What defense does defendant have? BFOQ (must be a Muslim b/c it’s a violation of the Saudi law and would endanger the pilot AND we tried to acc ommodate). Plaintiff, Black Male (ex.felony) not hired as a truck driver 1. Disparate Impact or Disparate Treatment? Disparate impact. 2. What type of discrimination is the plaintif f is alleging, under what law? Race discrimination under Title VII. 3. What would he have to show? Proportionally more minorities are ex-‐felons, and therefore the policy of not hiring ex-‐felons had a disparate impact on minorities. 4. What defense does defendant have? Business necessity (prevention of employee theft) or statisti cs showing that there is not a disproportionate number of minorities who are ex-‐felons. Plaintiff, 40-‐year-‐old with experience was declined over 28-‐year-‐old grad with no experience 1. Disparate Impact or Disparate Treatment? Disparate treatment. 2. What type of discrimination is the plaintiff is alleging, under what law? Age discrimination under the ADEA 3. What would he have to show? He was a member of a protected class (40 or older). He was qualified and applied for the job. He was not hired BECAUSE of hi s age. Defendant hired someone substantially younger who was equally or less qualified. 4. What defense does defendant have? They had non-‐discriminatory reasons (NOT based on age) for not hiring plaintiff. Jewish applicant was rejected from a Christian adoption agency for not being Christian 1. Disparate Impact or Disparate Treatment? Disparate treatment. 2. What type of discrimination is the plaintiff is alleging, under what law? Religious discrimination under Title VII. 3. What would he have to show? She was a member of a protected class (Jewish religious affiliation). She was qualified and applied for a position as a senior ad option agent. She was not hired. The agency continued their search and filled the position with less/equally qualified non -‐Jewish candidate. 4. What defense does defendant have? BFOQ to be a Christian. Plaintiff applied for the job of switchman was den ied by defendant phone company, women were not qualified (lifting objects between 30 and 40 pounds) 1. Disparate Impact or Disparate Treatment? Disparate treatment. 2. What type of discrimination is the plaintiff is alleging, under what law? Gender discrimination under Title VII. 3. What would he have to show? She was a member of a protected class (gender-‐female). She was qualified and applied for the position. She was not hired. The agency continued their search and filled the position with less/equally qualified male candidate. 4. What defense does defendant have? The specific “strenuous activity” law and BFOQ to be male (would require proof that women were not able to occasionally lift 30 -‐40 pounds) Plaintiffs, men; were not hired, but women were hired for the waiter position 1. Disparate Impact or Disparate Treatment? Disparate treatment. 2. What type of discrimination is the plaintiff is alleging, under what law? Gender discrimination under Title VII. 3. What would he have to show? They were members of a protected class (gender -‐male). They were qualified and applied for the positions. They were not hired. The restaurant continued their search and filled the positions with less/equally qualified female candidates. 4. What defense does defendant have? Gender (female) was a BFOQ Intellectual Property The legal rights which result from intellectual activity in the industrial, scientific, li terary, and artistic fields. (WIPO IP Handbook). There are Four Main Types: Patents Theory – Offer a limited monopoly to encourage production of utilitarian works, as long as “inventor” provides immediate disclosure fo r the ultimate enrichment of the public domain Source of Law -‐ Patent Act (federal) Subject Matter: Designs, Utilities and Plants Standard for Protection – You must file a patent application with the USTOP and your invention must be useful, novel, and non -‐obviousness Most Common Types of Patents Utility (Most often sought type of patents ) Protect (available for): machines (concrete things with parts that do stuff); manufacture (things made from raw materials); compositions of matter (new mix of substances), and processes/methods (steps/acts producing a result) Protects the way things are used and how they work/function and Last for 20 years Design Protect the appearance (shape/aesthetics) of manufactured articles , Protect the way things look and feel, can be issued in conjunction with a utility patent and Issued for 14 years. Ø To be patentable, an invention must be: Useful (has utilitarian value; rarely an issue) , Novel (something new, as compared to “prior art”) , and Non-‐Obvious (to one skilled in the art, as compared to “prior art”) • You get the exclusive right to make, use, and sell (i.e., the monopoly) a utilitarian invention for twenty (20) years or a particular design for fourteen (14) years • Excludes laws of nature, natural phenomenon, abstract ideas • America Invents Act (effective 3/16/2013): change from first to invent gets protection to first to file application with USPTO receives protection • Patent protection begins on date of filing, not issuance nd • After the 20 or 14 years, the invention enters the public domain (comes “off patent”) and any one can make, sell, use; could get 2 generation patent How could someone infringe on your patent? Unauthorized making, use, or sale of patented utility or design, can occur even if product not in commerce, and Can occur even if not all features/parts of the product are copied, unless a process (all steps must be copied to infringe upon patented process) What are you remedies? Injunction, Lost profits, and Royalties Trademarks Theory – Provide perpetual protection for distinctive, nonfunctional names and “dress” (colors, symbols) in order to maintain quality of information in the marketplace and void confusion regarding source of goods/services Source of Law – Lanham Act (federal); unfair competition law (state/common law) Subject Matter: Trademarks (distinctive sign/indicator; logo); Trade Dress (characteristics of the visual appearance of a product or its packaging); Service Marks (source of services, not goods); Certification Marks (e.g., Good Housekeeping); Collective Marks (e.g., CPA) Standard for Protection – Your mark must be distinctive, have secondary meani ng, be in use in commerce, and be famous; no need to file/registration, BUT . . . • A word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods/services of one party from those of others • The law seeks to avoid confusion, so other cannot use your marl in such a way that would dilute it • Examples -‐ McDonalds golden arches; Coca -‐Cola logo; AT&T globe Registration? Can register the mark with the USPTO, but it is not required . Registration has benefits (BK example): Notice to others of exclusive ownership , use the ® symbol, access to Federal Courts (Lanham Act), and assist with foreign registration. Distinctiveness is key: Marks must be sufficiently distinctive and Typically want fanciful, arbitrary, suggestive, invented words If not “distinctive,” must have Secondary Meaning: Descriptive terms, geography, personal names are not disti nct, Such terms take on secondary meaning when customers begin to associate terms to trademarked items , and Depends on advertising, sales, etc. Generic terms are NOT distinctive: Cannot refer to entire class of products, a distinctive mark can become generic i.e., Kleenex, Q-‐Tip, Band-‐Aid, Ziploc, Escalator How can someone infringe? Unauthorized use of the mark and owner must show D’s use created likelihood of confusion about origin of goods/services Remedies: injunction; damages; destruction of infringing goods Trade Secret Theory – People need to be free to contract and avoid unfair means of competition (tell people stuff without them using it to compete against me) Source of Law – Uniform Trade Secrets Act (state statute); common law Subject Matter: Formula, Customer List, Techniques, and Methods/Systems Standard for Protection – Information must not be generally known or available, creating commercial value (giving you a competitive advantage) b/c only you have/know it, AND owner must take reasonable steps to maintain its secrecy . • Information which creates independent economic value b/c it is not publicly known, which the owner has taken reasonable steps to protect • Customer lists, R&D, pricing information, marketing techniques, production methods; distribution systems . Coke formula is the most famous example • No registration requirements • Must be careful to share only with those who “need to know,” which is why you see confidentiality, non -‐disclosure, and non-‐compete agreements for employees • Misappropriation: D obtains trade secret by improper means (theft, breach of agreement); OR D publishes trade secret, knowing someone else obtained it improperly and P can get an injunction or damages. Copyright Theory – Offer a limited monopoly to encourage the authorship of expressive works Source of Law – Copyright Act (federal); common law (limited b/c preempted by federal law) Subject Matter: Literary, musical, choreographic, dramatic, and artistic works; Limited by idea-‐expression dichotomy Standard for Protection – Your work must be original, authored by you, and fixed in a tangible medium Provides an intangible property right to authors or originators of literary or artistic productions Must be original work of one of the following, fixed in tangible medium: Literary works, Musical works and accompanying words , dramatic works and accompanying music, Pantomimes and choreographic works, Pictorial, graphic, and sculptural works, Motion pictures and other audi ovisual works, Sound recordings, and architectural works. Must be an expression of an idea, not just an idea itself Can register with the U.S. Copyright Office, but not required b/c protection automatic as soon as the work is created/fixed in a tangible medium Registration is prima facie evidence of ownership and Use of © is optional. Copyright Act of 1976 • Works created after 1/1/1978 automatically given statutory protection for life of the author, plus 70 years • Works by more than one author expire 70 years after death of last surviving author • Anonymous, pseudonymous works, works for hire expire 95 years from date of publication or 120 years from date of creation, wh ichever expires first • Section 102 excludes underlying ideas or principles (idea -‐expression dichotomy); only the way idea is expressed is copyrightable • Section 103 affords copyright protection to compilations of facts ( i.e., databases) Exclusive rights of copyright owners: • To reproduce the work in copies or phonorecords (audio recordings); • To prepare derivative works based upon the work; • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; • To perform the work publicly; • To display the work publicly; and • To perform the work publicly by means of a digital audio transmission, in the case of sound recordings How does one infringe and what do I get? • Law prohibits unauthorized reproduction of all or a substantial portion of the original work • Remedies include damages (limit of $150k/incident under Copyright Act) and potential criminal charges Fair Use • In certain circumstances, person/organization can reproduce copyrighted materials without paying royalties if for “criticism, comment, news reporting, teaching, scholarship, research” • Evaluated based on (Section 107): • Purpose and character and use • Is it commercial or nonprofit/educational? • Not every commercial use is unfair (2LC) • Nature of copyrighted work • Is it a publicly known, expressive/artistic work? • That’s the point of a parody (2LC) • Amount and substantiality of portion used in relation to whole copyrighted work • Does it go to the original’s “heart”? • Even if, that’s what a parody does, and it was still different (2LC) • Effect use has on market for or value of the copyrighted work • Does it substitute for the original or exploit a derivative market? • Nope (2LC) First Sale Doctrine • When copyright owner sells/gives away copy of the work, owner no longer controls distribution of that copy • Think used books at school or CDs/DVDs at a pawn shop QUESTIONS 1. If professor Grelecki wrote an original musical composition on June 4, 2005, which he hand -‐wrote on a cocktail napkin and placed in a Lucite conta iner on his desk. If he dies on June 6, 2015, when does copyright protection for his musical composition expire? June 6, 2085 2. True of False: An employer would likely be liable for injury to a third party caused by an employee on a frolic, but likely n ot if the employee was on a detour. False 3. How can an employer defend against a disparate impact claim (2 things)? • Show that the allegedly discriminatory policy meets a business necessity, OR • Bring statistics establishing that the allegedly discriminatory policy does not have a discriminatory effect on the protected class of which plaintiff is a member. 4. What must a plaintiff typically establish when asserting a disparate impact claim? Defendant has a facially-‐neutral policy, which when applied, has a discriminato ry effect on the protected class of which plaintiff is a member. 5. True of False: If a land owner grants a real estate agent authority to sell her property via written agreement, actual author ity to perform other tasks related to the sale of the property, but which were not specifically listed in the agreement, cannot simply be implied from the express authority granted by the agr eement to sell her property. False 6. Beau purchases rare coins on behalf of Amy with his own funds; however, Amy refuses reimburse Be au for his expenses incurred in the purchase of the coins. If Beau still has the coins, what can he do to recover his expenses (specific remedy available to agents)? Place an Agent’s Lien on the coins and keep them until Amy reimburses him. 7. True or False: If a women experiences discrimination as a result of being pregnant, she has no recourse because being pregnant does not qual ify as a protected class. False 8. To have a claim for employment discrimination what must the plaintiff be first and foremost? A member of a protected class 9. How can a company best prevent the misappropriation of trade secrets by employees and former employees? Have them sign Confidentiality, Non-‐Disclosure, or Non-‐Compete Agreements. 10. True or False: Individual states are prohibited from passing state-‐specific anti-‐discrimination laws, if those laws would result in the establishment additional protected classes beyond those recognized under the Federal anti -‐discrimination laws. False 11. Bill is employed as a salesperson at Mary’s used car lot . All cars have a fixed price, which Bill knows. Bill sells a car that should cost $2,000 to a customer for $2,500, picketing $500. What can Mary do? (A specific remedy available to principals)? Seek to recover the $500 from Bill in an Action for Secret Pr ofits. 12. True or False: If an agent fails to follow the principal’s instructions, resulting in a loss/damages to the principle, the ag ent could be liable for that loss. True 13. If Professor Grelecki sells his copy of the Legal & Ethical Environment of Business textbook, which he purchased new, to a student, what recourse (if any) does the publisher have against Professor Grelecki for this distribution of the book (AND why)? Nothing, based on the First Sale Doctrine. 14. Misappropriation of a trade secret can occur u nder what circumstances (TWO)? • Defendant obtains the trade secret by improper means OR • Defendant received and disclosed a trade secret knowing the person from whom the information was obtained actually obtained i t improperly. 15. If another professor at GSU, in the music department, uses Professor Grelecki’s musical composition in class, without professor Grelecki’s permission, as a n example of how NOT to compose music and Professor Grelecki hears about this use, what, if anything, can he do (AND why)? Nothing, as this is likely a fair use. 16. If Colleen leaves her job voluntarily because her employer caused her working conditions to be so intolerable tha a reasonabl e person in her position would feel compelled to quit, she would have to claim that she has experie nced what to show an adverse employment action? Constructive Discharge 17. Besides the protected class (40+) and employee requirement (20+), how does a claim under the ADEA differ from a claim made un der Title VII with respect to what plaintiff must establish? Plaintiff must show that age discrimination was the ONLY reason for the adverse employment action (i.e., no burden -‐shifting analysis) 18. If KSU hires Professor Grelecki to perform construction work and Professor Grelecki has his own LLC through which he cont racts with KSU, uses his own tools to perform the work, is given 3 weeks to complete a specific repair job, and gets paid a lump sum upon completion of that projec t, Professor Grelecki is likely what? An independent contractor for KSU. 19. If Janet receives one sexually suggestive email from her co-‐worker, Phil, can she immediately claim that she has experienced sexual harassment through the establishment of a hostile work environment (and why/ why not)? No, because in order to establish a hostile work environm ent, Janet must show there was severe or pervasive (multiple occurrences) behavior. 20. True or False: in order to be afforded protection under the Lanham Act, a trademarked name can be either: (a) Distinctive (a fanciful, arbitrary, suggestive, or invented word) , OR (b) A standard term, point of geography, or personal name if it has taken on secondary meaning . TRUE 21. True or False: If the EEOC, which monitors compliance with Title VII, decides not to investigate a claim of discrimination, t he alleged victim of that lleged discriminatory
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