![Page 1: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/1.jpg)
Agency
The key to . . . something
![Page 2: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/2.jpg)
Agency is a relationship• Consent shown to one person (agent)• Act on behalf of the other (principal)– Agent is subject to control by principal– Agreement subject to consent by agent
• Principal thus agrees to be responsible for acts of agent– Contracts– Torts
![Page 3: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/3.jpg)
Respondeat superior
“Let the boss answer”
![Page 4: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/4.jpg)
Principals act through agent
• Principal may do almost anything through an agent
• Some principals may only act through agents– Corporations– LLCs– Cooperatives– You get the idea
![Page 5: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/5.jpg)
Relationship depends on consent
• Principal’s consent• Express or implied• Lets principal have control over agent• Does not always depend on intent of parties– Motive of agent, for individual actions– Dealings with third parties
![Page 6: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/6.jpg)
Consent may be inferred from conduct
• Ratification by principal– Approval after the fact– Accepting benefits
• Actions• Course of dealing• Circumstantial evidence
![Page 7: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/7.jpg)
Principal only responsible for acts done within authority of agent
• “Scope of authority”• Express– Explicit delegation of authority
• Implied– To do what is necessary of express authority
![Page 8: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/8.jpg)
Apparent authority
• Not “real” authority• Actions outside scope of authority– Actions accepted by principal
• Third parties rely on past dealings– Reliance on what looks like authority
![Page 9: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/9.jpg)
Principal’s liability
• Acts done within scope of authority
• Intent to benefit principal
• Unauthorized acts that are ratified– Not disavowed– Benefits retained
![Page 10: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/10.jpg)
Employment Law
![Page 11: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/11.jpg)
Issue number 1: Who is an employee?
![Page 12: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/12.jpg)
Why do we care?
• Employees have certain rights– Including tax withholding
• Non-employees (contractors) have rights through agreement
• Employers mischaracterize employees as contractors
• Not just temporary vs. permanent
![Page 13: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/13.jpg)
Different, but similar, definitions
• State common-law– Depends on control over worker
• US Department of Labor– “Is this worker’s principal source of income?”– Wage and hour laws– Pensions and benefits– Not most common test– DOL not proactive• Depends on complaints
![Page 14: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/14.jpg)
The most commonly used definition is from your friends:
![Page 15: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/15.jpg)
IRS tries to make sure employees are not wrongly called contractors
• Unpaid withholding– “Contractors” pay too much
• Proactive– Does not rely on complaints– Gets too many 1099 forms
• Test developed– Series of factors looked at
![Page 16: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/16.jpg)
IRS factors fall into three groups
• Behavioral control
• Financial control
• Relationship
![Page 17: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/17.jpg)
Behavioral control
• When/where to work• Tools equipment to use• Where to purchase– Tools– Supplies
• Who does what work• Order/sequence to follow• Whom to hire to assist
![Page 18: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/18.jpg)
Financial control
• Unreimbursed expenses• Extent of worker’s investment• Marketing of worker’s services• How/when worker is paid• Profit or loss
![Page 19: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/19.jpg)
Relationship
• Written contracts• Employee benefits– Insurance– Pension
• Permanent/indefinite• Services essential part of business– What does employer sell to public?
![Page 20: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/20.jpg)
All factors are considered; no one is the most important.
![Page 21: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/21.jpg)
Internships
![Page 22: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/22.jpg)
Rules for unpaid internships with private employers
1. Training similar to educational environment2. Experience for benefit of intern3. Intern does not displace regular employees;
works under close supervision4. No immediate advantage to employer5. Intern not necessarily entitled to job at end of
internship, and6. Employer and intern understand intern is
unpaid
![Page 23: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/23.jpg)
Exceptions
• Government agencies• Non-profits• Charitable volunteers
![Page 24: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/24.jpg)
Rights of employeesIt’s not an oxymoron.
![Page 25: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/25.jpg)
Minimum wage
• State (Minnesota)– $6.15 per hour– If employer has annual receipts <$625,000, $5.25 per
hour– No tip credit
• Federal– $7.25 per hour– Tip credit
• More than $30 per month in tips• Must pay at least $2.13 per hour
![Page 26: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/26.jpg)
If there is a conflict between state and federal minimums, higher
wage controls
![Page 27: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/27.jpg)
Overtime pay
• All “non-exempt” employees• 1 ½ times regular hourly rate for every hour
over 40 in a week– Week=168 consecutive hours– No averaging for multiple week in pay period– No lump-sum payment– No waiver– 1 ½ times employee’s regular pay, not minimum
![Page 28: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/28.jpg)
Non-exempt employees
• Entitled to overtime• All employees presumed non-exempt– Exemptions must be proven
• Any employee paid <$455 per week
![Page 29: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/29.jpg)
Exempt employees
• Not entitled to overtime– Not covered by minimum wage
• Employee must be paid a salary– At least $455 per week
• Focus on job description– Primary duties of job
![Page 30: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/30.jpg)
Categories of exemptions
• Executive• Administrative• Professional– Learned– Creative
• Computer• Outside sales
![Page 31: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/31.jpg)
Learned professional
• Primary duty is work requiring advanced knowledge– Discretion and judgment
• Knowledge in a field of science or learning
• Knowledge acquired through advanced education
![Page 32: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/32.jpg)
Creative professional
• Primary work requires invention, imagination, originality, or talent
• Recognized field of creative endeavor
![Page 33: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/33.jpg)
Worker’s compensation
• Covers all employees• Absolute liability for workplace injuries– Injury arises out of employment relationship– No showing of fault
• No right to sue for injuries– No common-law defenses for employer
• Schedule of benefits
![Page 34: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/34.jpg)
Worker’s comp benefits
• Medical expenses– Past– Future
• Lost wages– Percentage– Defined period of time
• Payment for loss of limb/death/disability– According to schedule
• Retraining
![Page 35: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/35.jpg)
OSHA
• Occupational Safety and Health Act• Workplace free of identified hazards• Does not give a right to sue– Evidence of negligence
![Page 36: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/36.jpg)
Unemployment insurance
![Page 37: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/37.jpg)
Unemployment insurance
• Funded by employers– Premium based on employer’s experience
• Covers employees who lose their jobs– No fault of their own– Good cause attributable to employer
• Ineligible– Voluntary quits– Fired for misconduct
![Page 38: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/38.jpg)
Benefits
• Percentage of wages– Based on yearly average– Paid for thirteen weeks
• Other assistance– Retraining– Job search help
• Employee must show good faith efforts to get a job
![Page 39: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/39.jpg)
Employee leave
• Time off– Unpaid– Continue insurance– Keep seniority, if possible
• Certain obligations/activities– Military service– Jury duty– Voting (Minnesota, not in Wisconsin)– School activities
![Page 40: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/40.jpg)
Family-medical leave
State• State employees• Employers with more than
21 employees• Birth or adoption of a child
only• Six weeks in one year• May be added to sick time
or vacation time– Cannot be combined with
federal time
Federal• Federal employees• Employers with more than
50 employees at one site• Birth, adoption, serious
medical condition of self or family member
• Twelve weeks in one year
![Page 41: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/41.jpg)
Drug-alcohol testing
• Required for some jobs• Any employer may
require– Written policy– Analysis done by
licensed lab– Positive results
confirmed by retest
![Page 42: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/42.jpg)
Miscellaneous rights
• No polygraph testing• Wages paid at least
monthly– Paid within 24 hours of
demand, if you’re fired
• Rest breaks
• See your personnel file– Every 6 months, or– Once after you leave– Make request in writing– Explain disagreements in
writing– Disagreement must be
included in file
![Page 43: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/43.jpg)
Not rights
![Page 44: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/44.jpg)
• Holidays• Vacations• Fringe benefits• Severance pay• Notice before firing• Privacy– Employer may monitor work-related calls– May monitor other areas for security
Contrary to what you may think, there is no absolute right to:
![Page 45: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/45.jpg)
Employment at Will“They can’t fire you for . . .”
![Page 46: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/46.jpg)
Yes, they can.
• General rule• Employees may be hired or fired for any
reason or no reason• Assumed that employees are at will• Exceptions to rule are limited
![Page 47: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/47.jpg)
Contract
• May prevent firing except for good cause• Collective bargaining agreement– Sets out steps for discipline
• Civil service jobs• Academic tenure• Employment handbooks– Older cases found handbooks were contracts– Handbooks rewritten by now
![Page 48: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/48.jpg)
Public policy
• Some law forbids firing for certain reasons• Policy that we want to encourage employees • Retaliation– Whistleblowers– Cooperate with investigation– Worker’s compensation claims
![Page 49: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/49.jpg)
Good faith/fair dealing
• Recognized in some states• Forbids firing except– Just cause– Not for spite or malice
![Page 50: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/50.jpg)
Discrimination
![Page 51: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/51.jpg)
Anti-discrimination laws
• Exception to employment-at-will doctrine• State and federal law– State• Minnesota Human Rights Act
– Federal• Civil Rights Act• Age Discrimination in Employment Act• Americans with Disabilities Act
![Page 52: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/52.jpg)
Prohibits
• Taking action relating to employment– Including benefit of employment
• Based on membership in a protected class
![Page 53: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/53.jpg)
Employment-related action
• Hiring• Firing• Pay• Classifications• Transfer• Promotion
![Page 54: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/54.jpg)
• Training• Benefits• Retirement or leave• Harassment• Retaliation
• Recall• Recruitment– Advertising jobs
• Testing• Use of facilities
![Page 55: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/55.jpg)
Protected classes
• Age (over 40)• National origin• Sex• Religion
• Disability• Pregnancy• Race• Sexual preference (MN
only)
![Page 56: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/56.jpg)
Clarifications/explanations
![Page 57: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/57.jpg)
National origin includes:
• Ethnicity• Naturalization• Legal immigration status• Accent• Native language
![Page 58: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/58.jpg)
Most important point:
Discrimination not unlawful if not based on membership in protected class!!!
![Page 59: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/59.jpg)
Religion—special rules
• Reasonable accommodation for religious practice– No undue hardship for employer
• Other expression allowed• Religious organizations may require following
doctrine– If related to job
![Page 60: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/60.jpg)
Disability—special rules
• Includes perceived disability• Disability is a limitation on major life activity• No discrimination if employee can do job with
reasonable accommodation– “Reasonable” depends on employer– Cost-effective
![Page 61: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/61.jpg)
Proving a discrimination case
![Page 62: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/62.jpg)
Prima facie case
• Membership in protected class• Qualified for benefit– Not necessarily best qualified
• Rejected• Position/benefit either– Remained open, or– Went to non-member of class
![Page 63: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/63.jpg)
Burden shifts to employer
• Bona fide occupational qualification– “BFOQ”– Only person not of class can do job• Essential, not preferable
– Read very narrowly
![Page 64: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/64.jpg)
Legitimate business purpose
• Most common defense• Other person better suited for job• Decided not to fill job• Can be rebutted by showing pretext– Sham purpose– Statistical pattern of discrimination
![Page 65: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/65.jpg)
Mixed motive
• Motive not entirely discrimination
• Would result have been the same without discrimination?
![Page 66: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/66.jpg)
Harassment
• Special type of discrimination• Can be actions of employees, if employer did
not stop it• Quid pro quo sexual harassment– Exchange of favors– Employer always liable
![Page 67: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/67.jpg)
Hostile environment
• Offensive remarks or conduct
• Severe and pervasive• Management was
aware of it
![Page 68: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/68.jpg)
Offensive
• Not necessarily directed at a particular person• Objective standard– Reasonable person– Joining in will show person wasn’t offensive
• Non-consensual
![Page 69: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/69.jpg)
Severe and pervasive
• No escaping• Constant• Not just isolated incident• Continues after complaints
![Page 70: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/70.jpg)
Management aware of it
• No liability without knowledge• Did nothing after complaints• Did nothing effective• No complaint process evidence of awareness• Employer knew of quid pro quo
![Page 71: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/71.jpg)
References
![Page 72: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/72.jpg)
Employers may disclose, without liability:
• Duties of employee• Compensation, wage history• Job description• Training, education provided by employer• Acts that resulted in firing, discipline, resignation– Violence– Theft– Harassment– Illegal conduct
![Page 73: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/73.jpg)
May disclose, with written permission
• Written evaluations and response• Written disciplinary actions– In the last 5 years– Written response
• Written reasons for separation• All must be sent to employee at the same time
![Page 74: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/74.jpg)
Agreements not to compete
![Page 75: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/75.jpg)
Common-law duty
• Duty of loyalty– No competition– No steering business away
• Duty ends when employment ends• Duty may be continued by contract
![Page 76: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/76.jpg)
Non-compete agreements set out post-employment duties
• No competition– New business– Work for competitor– Solicitation of customers– Confidentiality
• May be enforced against independent contractor
• Fired employee, if contract says
![Page 77: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/77.jpg)
Consideration
• It’s a contract, after all• New hires– Getting the job is consideration
• Existing employees– Keeping job not enough– Raise, new duties– Keeping job after merger/sale of company may be
enough
![Page 78: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/78.jpg)
Must be reasonable in scope and time
• Depends on individual case• No longer or wider than necessary to protect
employer– Lifetime-worldwide not reasonable– Ten year may be ok, for person selling business– For employees, usually no more than 2 to 3 years
![Page 79: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/79.jpg)
Interpreted against employer
• Minnesota courts will revise unreasonable clauses, unless whole contract is unreasonable
• Wisconsin courts will toss whole contract if unreasonable
• North Dakota courts do not enforce• South Dakota courts limit enforcement to 2
years• Specifically enforceable
![Page 80: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/80.jpg)
Trade secrets
![Page 81: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/81.jpg)
Uniform Trade Secrets Act
• Defines trade secret
• Information that– Is valuable because it is not generally known– Subject of reasonable efforts to maintain security
![Page 82: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/82.jpg)
Notice of secrecy not required
• If person who acquired know or should know of secrecy
• Circumstances
![Page 83: Agency The key to... something. Agency is a relationship Consent shown to one person (agent) Act on behalf of the other (principal) – Agent is subject](https://reader035.vdocuments.us/reader035/viewer/2022062718/56649ebc5503460f94bc4c4c/html5/thumbnails/83.jpg)
Taking a secret may be enjoined
• Injunction ends when secret no longer exists
• May require payment of royalty
• Money damages also available