Co-Worker Privacy Personal Space Question

You manage a Starbucks. All your employees are part time workers. One of them, we will call him X, is very active on social media and posts about the store and what is going on there- this is attracting business. Your regional manager has even complimented you on the volume of business you have been doing recently. Another employee has come to you to complain that X is always taking her picture and posting it and that she feels like he is ‘picking on her’.

Agency II
• Scope of Agency: Rights and
responsibilities of each
Agent’s Responsibilities
-Loyalty: can’t represent both sides without
disclosure, can be required to comply with noncompete agreements* (will be enforced if
reasonable) and confidentiality clauses.
– Duty of Obedience: instructions must be
followed if reasonable.
– Duty of care: act w/o negligence
– Duty to provide an accounting
– *see next slide for ‘extra extra’
Extra Extra
• Contract clauses that bind an Agent:
– Confidentiality Agreement, Non-disclosure
agreement (NDA)
• Protects privacy: cannot disclose what they have
learned, enforced if it does not violate public policy
– Non compete Clause:
• cannot go into the same line of work, cannot work
for competitors, enforced if reasonable.
Principal’s Responsibilities
• Duty to compensate Agent unless A is a
volunteer
• Duty to give reasonable clear instructions
• Duty to act w/o negligence*
• *reasonable standard of care
What A can ask for
•
•
•
•
•
•
Compensation
Reimbursement
Indemnification
Safe work environment
Accounting
Contract and tort remedies.
What P can ask for
• Contract and tort remedies: whatever is in
the agreement and civil wrongs (torts)
done by A
• Constructive trust: trace funds/proceeds
• Indemnification: if P is sued by third party
can proceed against A if A caused liability.
Liability
• When can A create liability for P?
– TORTS
• Scope of employment. Scope of task
– CONTRACTS
• When authorized
– CRIMINAL
• Injury to reputation
Torts
• When A commits a tort P can be sued for
it if the tort is committed during the scope
of employment. Applies to negligence
always but can apply to intentional torts if
P knew A had issues.
• While doing the task defined by P
– Detours
– To and from work
Torts
• Intentional torts are not generally
considered to be in the scope of
employment:
– Knowledge of P, notice of prior bad acts
• Since principal can be held liable, principal
has the right to substance test agent if job
related to reduce potential harm to others
Torts
• Principal is generally not responsible for
torts not in the scope of employment
unless:
– asking the agent to do inherently dangerous
work (demolition) or
– P negligently hires A (P should have known
agent had a problem) or
– P negligently instructs A (P gives bad orders).
Contracts
• Legally enforceable agreements
• A is often authorized to do this by P
• A can only enter into contracts or
agreements that A is authorized to do
– Apparent and implied authority issues can
muddy the waters here
Contracts
• Disclosed principal: if third party deals with
agent and knows who the principal is, then
everything that agent agrees to with the
third party can bind the principal.
– If that agent has no authority to agree to
anything then the agent is liable to the third
party not the principal.
Contracts
• Undisclosed principal: agent is responsible
until the third party finds out who the
principal is.
• Who is at risk here?
• Why would you have an undisclosed
principal?
Criminal Conduct
-P generally not liable unless directs it
or is a co conspirator.
-Crimes require individual intent so
perpetrator will be punished.
-Harm to reputation
Summary
•
•
•
•
•
A must be loyal and obedient
P must pay and give reasonable direction
Scope of employment makes P liable
A’s authority key in contracts
Criminal acts are personal
Agency I
What is it?
Principal hires agent to do a task.
Agency
Relationship
Agent acts on behalf of principal,
with direction.
Agent has the
capacity to bind
principal.
Can commit to
an obligation
Can create
liability: problem
area
Agency
relationships
Employer…employee
Athlete…… agent
Buyer………….realtor
Food bank……volunteer
Not all agents are employees,
they can be independent
contractors. Some obligations
will differ based on what kind
of agent you are dealing with.
Agency Relationships
• Direction, consent and control.
• P directs and controls what A does and A consents to be directed and
controlled.
• Does not require payment, agent can be a volunteer
• A volunteer can still create liability for P
• Most common agent relationship is employee and independent
contractor
• They are different and we look to IRS test
Employee
• IRS test: Under common-law
rules, anyone who performs
services for you is your employee
if you can control what will be
done and how it will be done.
https://www.irs.gov/businesses/
small-businesses-selfemployed/employee-commonlaw-employee
Independent
Contractor
• IRS test: The general rule is that an
individual is an independent
contractor if the principal has the
right to control or direct only the
result of the work and not what will
be done and how it will be done.
https://www.irs.gov/businesses/small
-businesses-selfemployed/independent-contractordefined
Why important to distinguish?
• Because law imposes many more obligations on you as a manager of
employees:
•
•
•
•
Social security
Minimum wage
Discrimination protection
Many more that we will look at during this course.
Fiduciary relationship: trust and loyalty
Highest legal relationship
Nature of the
Relationship
Can have no conflicts of interest
Act for the other in their best interests not
in your own
How to create agency
• By Agreement: express, verbal or written
• By Ratification: up to Principal
• Estoppel*: based on conduct, imposed by law
• Implied: imposed by law based on what agent should be allowed to
do.
• * cannot deny it in court
Express authority: Jerry McGuire is my
agent and you will negotiate with him.
Agreement
Can be verbal or written. If agent is going
to enter into contracts that need to be in
writing, then the agency agreement should
be in writing.
Capacity to contract is required for agents
if they will be executing contracts.
Ratification
Principal can ratify (adopt) an
agreement that agent negotiated
without authority, i.e. Principal can
cure agent’s lack of authority or can
reject the agreement.
If principal does this enough times
a pattern may be established that
agent is authorized beyond his
scope. Beware…
Implied authority: once given express
authority get all the things that go
with it. A manager with authority to
buy supplies must also have authority
to pay for them.
Estoppel/Implied
By Estoppel: looks like you have
authority, apparent authority, third
parties rely on that apparent authority,
principal will be denied from claiming
that you are not an agent.
Agency is about direction and control.
It is a fiduciary relationship.
Summary
Important distinction: employee and independent
contractor.
Volunteer agents (unpaid) can still create liability
for you.
Formed by agreement, ratification or imposed by
law (estoppel and implied.)
Employment II
Anti Discrimination Laws
• To assure a fair workplace and in response to lawsuits concerning sex
and race discrimination and unfair pay, Congress passed many laws
trying to keep discrimination out of the workplace.
• The primary federal law on discrimination in the workplace is Title VII
of the Civil Rights Act of 1964.
• The Civil Rights Act of 1964 was primarily passed to deal with racial
discrimination in voting, housing and employment. It has been
expanded on ever since.
Title VII of the Civil Rights Act
• Prohibits discrimination in the hiring, work and termination of employees on
the basis of their race, gender, color, national origin or religion. SCOTUS has
extended this protection to gay and transgender (Bostock v. Clayton County,
2020).
• Applies to all phases of the employment process: hiring, work benefits,
assignments, opportunities and termination. Decisions made by
management in those areas cannot be based on the identified protected
classes unless a bona fide occupational qualification.
• All employees fall into one or more of these classes.
• Applies to firms with 15 or more employees.
Title VII cont’d
• Can prove a single act of discrimination or conduct that discriminates
against a group as a whole.
• Additional causes of action under title VII:
• Sexual harassment: quid pro quo, sexual favors in return for job advancement.
• Hostile Workplace: behavior or actions in workplace that make others feel
unwelcome or threatened. The standard is high.
Title VII exception
• Bona fide occupational qualifications/business necessity allow
employers to make employment decisions on the basis of the
protected groups.
• What is a bfoq? It must be integral to the performance of the work.
E.g. must be a Catholic to be a priest so the employer can
discriminate based on religion.
How to enforce title VII
• Equal Employment Opportunity Commission
• Administrative agency that enforces workplace discrimination law.
• File a complaint with them
• They either take up your case or give you a right to sue letter
• For Title VII cases you have to file with EEOC before you go to court
• Caveat: as with all employment law issues you must first exhaust your
employer’s remedies whatever they may be. Complain to supervisor
etc…
How does Title VII impact manager
• Hiring:
• Interviews and applications cannot ask questions that are used to elicit
protected group information
• Must hire on qualifications
• Work performance and benefits:
• Can’t give all management opportunities to a certain group or deny them to a
certain group. The pattern of activity is important.
• Termination:
• Terminations need to be consistent, uniformly enforced and not target one
group. The pattern of activity is important.
Additional Federal Laws on discrimination
• Americans with Disabilities Act of 1990
• Age Discrimination Act of 1967
• Equal Pay Act of 1963
• Pregnancy Discrimination Act of 1978
• Uniformed Services Act of 1994
• Genetic Information Act 2008
Americans with Disabilities Act
(ADA)
• A documented disability that interferes with major life activities or if an
employee is adjudged as having a disability, then…
• Reasonable accommodation must be granted so long as it is not a hardship to
the employer.
• Amendments of 2008 extended what can be an accommodation, e.g.
medication, artificial aids and assistive technology (e.g. pro golfer gets a cart).
• Addiction can be a disability.
Age Discrimination Act
• Prohibits discrimination in employment on the basis of age, those over 40
• No mandatory retirement age, unless bona fide occupational qualification
• Applies to employers with 20 or more employees
• Passed in response to large companies like IBM, firing employees just as they
were about to vest in the retirement system
• Accounting firms as examples. In 2018, PwC was sued for only recruiting on
college campuses, case settled 2021 for 11.5 million. Attorneys got 4 m and
the rest went to 2 years of program efforts. Still require retirement at 60.
Equal Pay Act of 1963
• Equal work requires equal pay: the test is comparable work
• Cause of action arises every time you receive a paycheck that does not pay
you fairly, (Lily Ledbetter Act of 2009) so statute of limitations* (two years)
begins again every time you get a paycheck.
*Statute of limitations= time within which you must sue to preserve your rights
Pregnancy Discrimination Act of 1978
• Even with Title VII protections, women who became pregnant were
often fired. The lawsuits they brought were dismissed because the
decision was not based on their sex but on their condition.
• Congress tried to close the loophole with this law.
• It prohibits workplace discrimination based on pregnancy.
• Pregnancy can become a disability so there is interplay with the ADA
as well as with FMLA.
Uniformed Services Act of 1994
• This act is designed to protect those who serve in the military
reserves. They have full time jobs but they get called up from time to
time. This law protects them from being fired or denied opportunities
because they are away serving their country.
• Most military personnel are full time employees of the branch of
service to which they belong.
Genetic Information Act 2008
• Once the genetic code had been mapped, anyone with a blood or
urine sample could do a genetic test on that sample and find out a lot
about a person. More than just whether or not they were drug free.
• This placed power in the hands of employers who legally procured
those samples for legitimate purposes. How would they use that
information?
• This act protects employees from an employer sharing their genetic
information and especially using it to fire them. For example you may
want to get rid of people who have gene markers for disease because
they will cost your medical plan more than those who do not.
Summary
• Anti Discrimination laws passed to keep employers from making
decisions based on personal criteria: sex (gay and transgender), race,
age, national origin, religion, pregnancy, military service, or genetic
code.
• Title VII of the Civil Rights Act of 1964 is the main law but other acts
and SCOTUS decisions have built on it.
• Equal Employment Opportunity Commission main enforcement
agency.
• Managers need to seek help of human resources here.
Substance
Form: can do it in
memo form, no more
than 4-5 pages
BIG THINK RUBRIC
Average
Answers the question
giving basic advice to
managers
Few spelling and
grammar errors,
readable
Good
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basic answers,
relates answers to
class material,
supports
recommendations
Good grammar, no
spelling errors,
organized
Excellent
Offers creative and
independent
answers, targets key
class material to
question, efficient
application of class
material in support of
recommendations
Clear concise writing,
well written,
organized flow