LEG500 Assignment 3
LEG500 Assignment 3
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Date Created: 11/06/15
Running head ASSIGNMENT 3 EMPLOYER S DUTY OF CARE Assignment 3 Employer s Duty of Care Strayer University LEG500 Law Ethics and Corporate Governance Professor Benjamin M Shushan ASSIGNMENT 3 EMPLOYER S DUTY OF CARE 2 May 13 2011 Assignment 3 Employer s Duty of Care Explain Whether Jake s Actions Are in or out of His Scope of Employment Working as a mechanic Jake s actions are within the scope of his employment Scope of employment is the range of conduct and activity within which an employee can reasonably be considered to be carrying out the business of his or her employer Merriam Webster s dictionary of law 1996 P444 It refers to an employee actively involved in an employment task at a particular time usually in issue when an accident occurs which is required to make a Claim for work related injury under state Worker39s Compensation Acts The decision of whether an employee is engaged in duties in the scope of employment depends on whether the actions of an employee further the business of the employer and thereby it makes an employer liable for damages due to such actions If the actions of an employee improve the business of the employer such employee s actions are in the scope of employment In this case Herman instructed Jake to do a free oil change as part of a promotion at the car dealership Instead Jake not only Changed the oil but he also Checked the brakes tires transmission etc Jake seems to have violated the limits of his employment for he has disobeyed his employer by not following what he was instructed to do But Jake argues that as a certified mechanic there are standards that he has to keep up and that under these Circumstances his actions are reasonable and required by law In this situation when Jake is working on the cars Herman s free oil Change it appears that he is within the scope of employment However Jake has offered a basic Check up service along with oil change on each car is really beneficial to the business even though such extra service is not commanded by Herman and the time invested on ASSIGNMENT 3 EMPLOYER S DUTY OF CARE 3 this extra work affects the speed of the authorized work on the part of Jake It has indeed attracted more customers to go in for the purchases of the cars on display in Herman s premises which is the main of the Herman s business activity Moreover the extra service performed by Jake as qualified mechanic also gives positive signals to the customers who in turn will come back for service in future which is a benefit to the business in the long run Thus Jake s actions are in the scope of his employment Explain Whether or Not Herman Is Responsible for Jake s Injury Yes as the owner of the place of business Herman is responsible for Jake s injury In this scenario Jake is covered under the state Workers Compensation Act An injury can be sustained in the course of employment under state Workers Compensation Acts where the employee is injured on or off the employer s premises while actually engaged in furtherance of the employer s business or affair Before the development of Workers Compensation Acts common law held that employees injured on the job had to rely on tort law or contract law theories and were often defeated on claims of contributory negligence or assumption of risk Miller amp J entz 2010 The burden of proof lay with the employee Because of the slow costly and uncertain legal process involved in establishing proof many injuries remained uncompensated Workers compensation legislation was enacted to solve these problems Today however state and federal laws protect the employees from the risk of accidental injuries when they are on duty Every state Workers Compensation Act is designed to provide a satisfactory means of handling occupational injuries State Workers Compensation Acts widely vary In general under Workers Compensation Acts the right to recover employee39s ASSIGNMENT 3 EMPLOYER S DUTY OF CARE 4 compensation benefits depends on the existence of an employment relationship and the fact that the injury was accidental and occurred on the job or in the course of employment regardless of fault Filing claims under Workers Compensation Acts allows injured employees to recover compensation without proving fault or going through the courts Therefore Herman is supposed to pay for the injury caused to Jake during the working hours Explain Whether or Not Jake Should Be Paid the Overtime Yes Jake should be paid the overtime Under the Fair Labor Standards Act FLSA of 1938 employers must give overtime pay to most employees who work over 40 hours per week regardless of how many hours they work in a day The overtime premium is 50 of the employee39s usual hourly wage That is employees who are eligible for the payment of overtime must be paid no less than one and a half times their regular pay for all hours worked over 40 hours in a workweek United States Department of Labor 2010 The FLSA also provides exceptions to this rule for professional executive and administrative employees Accordingly Herman argues that Jake as a service manager is an exempt employee who is not eligible for overtime and therefore he should not require to be paid additional wages for overtime The FLSA has specific tests to determine the qualifications of an employee for him or her to be determined as an executive an administrator or a professional employee Generally speaking whether an employee maintains his or her executive exemption when performing concurrent duties is determined on a casebycase basis based on the primary duty factors set forth in the FLSA regulations Concurrent Tasks and the Fair Labor Standards Act 2010 For instance a working supervisor whose primary duty is performing nonexempt work on the ASSIGNMENT 3 EMPLOYER S DUTY OF CARE 5 production line in a manufacturing plant does not become exempt Similarly an employee whose primary duty is to work as an electrician is not an exempt executive even if the employee also directs the work of other employees on the job site orders parts and materials for the job and handles requests from the prime contractor In this case as Jake regularly works on the cars it appears that Jake is a nonexempt employee and is therefore entitled to his overtime benefit Explain the Rights Jake and Herman Have Individually in this Scenario In this scenario the rights Jake has include a having safe and healthy working conditions b receiving compensation for his injuries caused during the work and c receiving overtime pay for the extra working time The reasons are as follows First in 1970 The US Government enacted the Occupational Safety and Health Act OSH Act which set minimum standards of workplace safety To comply with this law employers must provide their employees with a work environment free from recognized hazards causing or likely to cause death or serious physical harm to employees Halbert amp Ingulli 2009 p 162 Additionally employers must also make sure that their employees are using the provided safety tools and equipment and has properly maintained Second as to compensation for workrelated injuries state workers compensation laws widely vary and in turn the determination of a given workers compensation program whether a given employee is at fault for his or her own injuries will also widely vary However in most workrelated injury cases an employer is responsible for the damages caused by these injuries to their employees Typically an injury is compensable under the workers compensation act only if the injury arises in the course of employment and is causally related thereto Third according to the Fair Labor Standards Act FLSA of 1938 covered ASSIGNMENT 3 EMPLOYER S DUTY OF CARE 6 nonexempt employees must receive overtime pay for hours worked over 40 per workweek at a rate not less than one and onehalf times the regular rate of pay United States Department of Labor 2010 Performance of both exempt and nonexempt work in the same workweek does not disqualify an employee from the FLSA s nonexempt employee as long as the employee meets FLSA regulations requirements for the nonexemption Given the circumstances Jake is a nonexempt employee because he regularly works on the cars Thus he has a right to receive his overtime pay On the other hand Herman has a right to expect that Jake performs his duties Under Jake s duty of performance there is an implied condition that he will use reasonable diligence in performing his work In addition the completion of work on time to Jake is mandatory and Herman has the right to expect the same from Jake Moreover Herman has a right to expect Jake s obedience towards him The relationship between employers and employees determines the success of a business to a great extent Obedience on the part of J akes is compulsory as Herman is answerable to his clients for the quality and the on time job Hence it is necessary for Jake to follow all lawful and clearly given command of his employer Furthermore Herman has the expectation that Jake has to be honest and loyal to his employer and must give his best in his work Finally Jake is supposed to comply with the related rules regulations or laws Any deviation or dereliction of duty is punishable under laws Also Jake is bound by rules and regulations at his workplace and is liable for a penalty or punishment in case of violation of any kind ASSIGNMENT 3 EMPLOYER S DUTY OF CARE 7 References Concurrent Tasks and the Fair Labor Standards Act 2010 October Payroll Practitioner39s Monthly 201010 46 Halbert T amp Ingulli E 2009 Law amp ethics in the business environment 2010 custom edition 6th ed Mason OH SouthWestern Cengage Learning MerriamWebster s dictionary of law 1996 Springfield MA MerriamWebster Inc Miller R L amp J entz G A 2010 Fundamentals of business law Excerpted cases 2th ed Mason OH Southwestern Cengage Learning United States Department of Labor 2010 Handy reference guide to the Fair Labor Standards Act Retreved from httpWWWdolgovthregscompliancehrghtm8
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